On 7 June 1949, the Constituent Assembly took up Draft Article 196 for discussion; B.R. Ambedkar and Sardar Hukam Singh moved two amendments. While Ambedkar proposed that an ex-Judge of a High Court be disallowed to practice law in any court or authority, Singh’s proposed that an ex-Judge be disallowed to practice only in the High Court where he/she was a Judge.
H.V. Kamath was agreeable to Singh’s amendment but opposed Ambedkar’s. He referred to Ambedkar’s proposal as ‘too sweeping a restriction’, ‘unwarranted’ and ‘undemocratic’. He was specifically concerned about a situation where a person was a Judge for only a short period of time – a temporary Judge: he felt it was not reasonable in this case to constrain the Judge form pleading before any Court after leaving the bench.
Supporting Ambedkar’s proposal, Shibban Lal Saxena argued that an ex-High Court Judge returning to the bar lowered the office of a High Court Judge – he was concerned about ‘dignity’. Interestingly, he suggested that even former Ministers of Justice should not be allowed to practice law; they may try to get more clients by showing off the contacts they made with the Chief Justice and other Judges while they were Ministers.
Saxena invoked the example of Britain: those who have served on the Bench did not later serve on the Bar.
Mahavir Tyagi asked why only lawyers should be appointed Judges – even capable persons who were not lawyers or who didn’t have a law degree could discharge the functions of a Judge. He seemed to suggest that if non-lawyers were made Judges, then the problem of ex-Judges returning to the Bar would not arise.
Tyagi was in agreement with Saxena: lawyers might ‘use these offices [judicial posts] as springboards or ladders to build more lucrative practice after retirement’.
B.M Gupte, like Kamath, felt that Ambedkar’s amendment was ‘too wide a and drastic’. He referred to the existing situation where the only restriction on ex-Judges of a High Court was that they could not practice in the Court where they served on the Bench and suggested that this system did not throw up any problems till now. Gupte, responding to the Saxena’s use of the British example, argued against the use of foreign jurisdictions in the debate – what mattered was India’s experience.
He furthered warned that Ambedkar’s amendment, in addition to the problem of low pensions for Judges, would stop top legal talent from joining the Bench.
At the end of the debate, the Chairman of the Assembly, after giving a chance Ambedkar to respond (Ambedkar declined), put the amendments to vote. The Assembly rejected Singh’s amendment and adopted Ambedkar’s. Draft Article 196 became Article 220 of the Constitution of India, 1950 – the provision disallowed an ex-judge of a High Court from practising law in front of any Court or authority.
However, six years later, Article 220 was changed by the Union parliament through the Seventh Amendment Act, 1956. The amendment allowed for High Court Judges to practice at the Supreme Court or anywhere else except the High Court in which they served. This closely resembled the proposal that Singh had moved in Assembly.
The Seventh Amendment's rationale was: ‘An important factor affecting the selection of High Court judges from the bar is the total prohibition contained in article 220 on practice after their retirement from the bench’; this was similar to what Gupte had expressed in the Assembly. Also, the Seventh Amendment took care of Kamath’s concern about ‘temporary judges’: Article 220 now used the term ‘Permanent Judge’.