TMI Blog2012 (7) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... n appropriate writ, restraining Respondents 5 to 9 from pleading or acting before any Court or before any other authority in India, except the Supreme Court of India or any other High Courts, other than the High Court of Judicature at Bombay in view of the provisions of the Constitution of India . Respondents 5 to 9 are enrolled as Advocates on the rolls of the Bar Council of Maharashtra and Goa. Each of them was appointed as an Additional Judge of this Court. Each of them tendered his resignation during the course of the term of appointment as Additional Judge of the High Court of Judicature at Bombay. The most recent of the resignations was that of the Ninth Respondent on 8 May 2012, while the farthest in point of time, is that of the Fifth Respondent, who demitted office fourteen years ago. All of them have reverted to practise at the Bar. The central point involved in these proceedings turns upon the construction of Article 220 of the Constitution. According to the Petitioner, though Article 220 in its present form contains a prohibition on a person who has held office as a permanent Judge of a High Court from pleading or acting in any Court or before any authority in India ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words as a permanent judge should be interpreted to mean 'like a permanent judge' or 'in the same capacity as a permanent judge'. 2. These submissions have been opposed on behalf of Respondents 5 to 9 each of whom is represented by Counsel. Counsel appearing on behalf of the Fifth Respondent submits that: (i) Articles 217 to 220 and 224 of the Constitution make a distinction between permanent and additional Judges of the High Court. The provisions of Articles 220 and 224 were brought in as a result of the Seventh Amendment to the Constitution in 1956, by which, on the one hand, while inserting a provision for appointing Additional Judges, the Constitution expressly introduced a prohibition on practice before the same Court only by persons, who have held office as permanent Judges. The expression permanent must be construed with reference to the tenure of a Judge; (ii) The words of the Constitution are clear and unambiguous and there is no occasion for the Court to embark upon a purposive interpretation. The duty of the Court must be to adopt the ordinary and natural meaning to the words used by the constituent body; (iii) The interpretation which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is until the holder of office attains the age of 62, while that of an Additional Judge, is for two years. What the Petition essentially seeks is that the Court must disregard the warrant of appointment, and the constitutional status and deem an Additional Judge to be a Permanent Judge. This, it is urged, cannot be achieved through a process of constitutional interpretation. 5. Counsel appearing on behalf of the Ninth Respondent submitted that the Constitution recognizes Permanent Judges and Additional Judges as two separate and distinct classes. It has been urged that there is no way in which this Court, in the exercise of its jurisdiction under Article 226 of the Constitution, can render a particular Article of the Constitution otiose or nugatory by placing an interpretation on another article of the Constitution contrary to the intendment. 6. Counsel appearing on behalf of the Eighth Respondent has adopted the submissions which were urged. 7. The rival submissions now fall for consideration. 8. The Constitution, as it was originally adopted, contained no provision for acting or Additional Judges. There were precedents before the adoption of the Constitution for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an Additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years. 220. Prohibition of practicing in Courts or before Authority by Judge. No person who has held office as a Judge of High Court after the commencement of this Constitution shall plead or act in any Court or before any Authority within the territory of India. 220. Restriction on practice after being permanent Judge. No person after commencement of this Constitution who has held office as a Permanent Judge of a High Court shall plead or act in any Court or before any Authority in India except the Supreme Court and the other High Courts. 224. Notwithstanding anything in this chapter, the Chief Justice of a High Court for any state may at any time, with previous consent of the President, request any person who has held the office of a Judge of that court or any other High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in Article 224. Article 220 which dealt with the prohibition of practicing in Courts or before Authority by Judge , prior to its amendment, was recast by the Seventh Amendment. The absolute prohibition on a Judge of the High Court, pleading or acting in any Court or before any authority within the territory of India, was substituted by the provisions of Article 220 as it now stands which is materially different in two respects. Firstly, after the amendment, the prohibition in Article 220 no longer applies to a person who holds office of a Judge of the High Court, but to a person who holds office as a permanent Judge of a High Court. Secondly, the prohibition, which prior to the amendment of 1956 was cast in absolute terms, is now a prohibition from pleading or acting in any Court or before any authority in India except the Supreme Court and the other High Courts. 11. The legislative history underlying the Seventh Amendment to the Constitution is significant. When the Constitution came to be amended so as to allow the appointment of Additional Judges, simultaneously, the prohibition which was imposed by Article 220 on a person who had held office of Judge, from pleadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the experience which the Appellant had acquired in his capacity as an exofficio Associate Professor could be taken into reckoning. The Supreme Court held that the expression as in the context of the Rule must be interpreted to mean in the capacity of and the Court underlined the need for imparting a broad and liberal meaning to the expression. The Supreme Court adverted to the dictionary meaning of the expression as which meant something like, similar to, of the same kind, in the same manner or in the manner in which . The Supreme Court held that the expression as would mean the same as, in the character, capacity, role of . Now it is necessary, while adverting to the judgment of the Supreme Court in Asim Kumar Bose to emphasize that the rule there was a rule of eligibility and was not a rule which restricted the right of an individual to practise his or her profession. As a rule of eligibility, the Supreme Court was of the view that it would be necessary to impart a broad and liberal construction to a provision in the rules in determining as to whether experience of a medical professional as an exofficio Associate Professor should be taken into reckoning. This principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a gateway for entering the cadre of Permanent Judges. 14. This, however, cannot provide justification for the Court, while interpreting the provisions of Article 220, to rewrite a constitutional provision. Where the Constitution has specifically confined the prohibition on the right to practise before the same High Court only to a person who has held office as a permanent Judge of the High Court, there would be no reason or justification for the Court to introduce such a restraint by a process of judicial interpretation upon Additional Judges. The view which we have placed on the plain language of Article 220 also accords with the observations of the Supreme Court in N. Kannadasan vs. Ajoy Khose (supra). In that case, the Supreme Court considered the provisions of Section 16 of the Consumer Protection Act, 1986 which provides that the State Commission shall consist of a person who is or has been a Judge of the High Court. The Supreme Court was of the view that the suitability of a person to be considered for appointment as a Chairman of a State Commission, having regard to Article 217 of the Constitution, would mean those Judges who have retired from service without any blemis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional challenge, whether a constitutional provision should be revisited or altered is not for this Court to decide since the constitutional authority to do so vests in Parliament. 16. There is absolutely no merit in the contention that an Additional Judge who upon reverting to the Bar commences practise would be placed in an unequal position as compared to any other member of the Bar. Judges are vested with a solemn obligation of rendering justice in accordance with law; justice which is dispassionate and objective. If a person who is appointed as an Additional Judge reverts to the Bar at the end of his tenure of office or earlier, that person assumes the role of an Advocate before the Court. Every member of the Bar is entitled to the same treatment from the Bench and there is no basis in the apprehension that this would not be the case if an Additional Judge, upon ceasing to hold office reverts to the Bar. Judicial office is associated with the discharge of significant responsibilities. Training as Judge and the conventions of the Bench are important elements in the process of dispensing justice that is objective. Upon reverting to the Bar, such a person has the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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