Supreme Court To Consider If Co-opting Ex-HC Judges As Women Bar Council Members Attracts Article 220 Restriction

The Supreme Court on Monday said that it will consider whether co-opting former High Court Judges as women members in State Bar Councils will attract the bar under Article 220 of the Constitution, which prohibits a former High Court Judge from practising in that Court.

A bench led by Chief Justice of India Surya Kant heard the arguments raised by Senior Advocate Sanjay Parikh against the inclusion of a former High Court Judge.

Making an oral mention, Parikh, who was representing six Councils, submitted that the Supreme Court did not consider many aspects, such as the Dhulia committee reports, before passing the order.

Parikh asked if the Court can pass an order invoking Article 142 of the Constitution contrary to the Advocates Act.

The CJI replied that the Court was constrained to pass such an order as there were recurring repeated applications by various parties regarding the manner of implementing co-option. "Every day there was a new application, new mentioning. Every day new criteria was suggested and it was becoming very difficult," the CJI pointed out. The CJI underscored that it was passed to ensure women's representation, which everyone welcomed.

Parikh, however submitted that a Constitutional issue could arise because, as per Article 220 of the Constitution, a retired High Court Judge cannot practice in the same Court. Therefore, if a retired High Court Judge is made a member of the Bar Council, it could attract the bar under Article 220.

"The jurisdictional judge cannot practice. So therefore, if a person who is barred from practice is made a member of the Advocates' body...," Parikh submitted.

The CJI said that if such an issue arise, the Court will consider it. "Let us wait, if any Chief Justice refers the issue to us, we will examine. This part, we are open to examining. You have pointed out something new, which may be an impediment in constituting the Councils. We will examine. But rest of the order we will not (change), "CJI said.

The issue relates to the implementation of the Supreme Court-mandated 30% women's reservation in State Bar Councils. The Court has permitted 10% seats to be co-opted, considering that adequate women candidates may not be available in every State. Since there was confusion as to how the co-option is to be enforced, the Supreme Court, on August 4, passed an order permitting the High Court Chief Justices to co-opt the women members out of former HC Judges or advocates.