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Supreme Court to Examine If Ex-High Court Judges as Women Bar Members Violate Article 220
In a development with far-reaching implications for the composition of , the has agreed to examine whether co-opting former High Court judges as women members would contravene . The provision expressly prohibits a retired High Court judge from practising before the same court, raising the question of whether such a judge can sit as a member of an advocate’s representative body. The issue emerged during oral submissions made before a bench led by Chief Justice of India Surya Kant, who noted that the court would consider the if any Chief Justice referred the matter.
Background of Women’s Reservation in Bar Councils
The debate stems from the Supreme Court’s earlier directive mandating 30% reservation for women in —a progressive step aimed at rectifying gender imbalance in legal governance bodies. To address practical difficulties in finding an adequate number of women candidates in certain states, the court permitted the co-option of 10% of the seats. However, the absence of a uniform method to implement this co-option led to repeated applications and confusion among stakeholders.
On , in a bid to resolve the chaos, the Supreme Court passed an order authorising the Chief Justices of the respective High Courts to co-opt women members from among former High Court judges or advocates. This move was widely welcomed as a pragmatic solution to ensure women’s representation. Yet, it also opened the door to a significant constitutional conundrum.
The Article 220 Challenge
, representing six , flagged the issue during an oral mention. He argued that the Supreme Court had not considered critical aspects, including the recommendations of the , before passing the order. Parikh questioned whether the court could invoke its under to issue an order that might run contrary to the Advocates Act.
More pointedly, Parikh drew attention to the operation of Article 220, which states: “No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall in any court or before any authority within the territory of India.” He submitted that a retired High Court judge, barred from practising in the same court, would be an anomaly if appointed as a member of the very body that represents lawyers practising before that court.
“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, leaving the implication hanging. The bench responded by acknowledging the novelty of the point. Chief Justice Surya Kant said, “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).”
The Court’s Constraint and the Need for Co-option
The Chief Justice explained the context behind the order, emphasising that the court was “constrained” to act because of the constant influx of applications and varying criteria proposed by different parties. “Every day there was a new application, new mentioning. Every day new criteria was suggested and it was becoming very difficult,” he observed. The co-option mechanism was crafted to break the deadlock while ensuring that women’s representation—a universally welcomed goal—was not stymied by procedural wrangling.
The court’s stance reflects a balancing act between practical governance and constitutional fidelity. On one hand, the need to accelerate gender parity in the legal profession’s administrative bodies is urgent. On the other, any measure that undermines the core prohibition on former judges practising in their erstwhile jurisdictions could erode public confidence in the independence of the judiciary.
Legal Analysis: The Intersection of Article 220 and the Advocates Act
The constitutional issue raised by Parikh touches upon the very definition of “practice” under Article 220. The term “” has been interpreted broadly to include any form of representation before a court or authority. Membership of a Bar Council, which is essentially a statutory body comprising advocates, does not by itself constitute “practice” in the traditional sense. However, a Bar Council member—especially one co-opted as a women representative—may be called upon to vote on matters affecting the regulation of the legal profession, including disciplinary proceedings against advocates. Does that amount to “pleading or acting” within the meaning of Article 220? The answer is not straightforward.
, empowers Bar Councils to exercise . If a former High Court judge sits on such a council, could there be a or a ? The question is especially delicate because the retired judge would have presided over cases involving advocates who now appear before the same council. The Supreme Court’s willingness to examine the issue indicates that the constitutional text may not have anticipated such a scenario.
Impacts on Legal Practice and the Justice System
If the Supreme Court ultimately holds that co-opting retired High Court judges violates Article 220, the immediate effect would be to limit the pool of eligible women candidates for co-option. States that already struggle to find women advocates with sufficient experience might have to look solely at former women judges of lower courts or senior women advocates who have never held a judgeship. This could potentially slow down the implementation of the 30% reservation.
Conversely, if the court finds that Article 220 does not bar such co-option, it would set a precedent for the inclusion of retired judges in other quasi-judicial or statutory bodies connected to the legal profession. The decision could thus influence the composition of various legal regulatory committees across the country.
The Road Ahead
The Supreme Court has not yet scheduled a full hearing on the issue; it awaits a reference from any Chief Justice. However, the court’s openness to examining the constitutional point suggests that a substantive challenge may soon be filed. Legal observers will watch closely to see how the Apex Court reconciles the imperative of gender representation with the clear prohibition contained in Article 220.
In the meantime, the order remains in effect, and Chief Justices of High Courts are expected to start the co-option process. Those appointed will serve until the final verdict on this constitutional question. For the legal community, the case underscores the need for careful constitutional analysis whenever novel means are employed to achieve social objectives.
Conclusion
The Supreme Court’s decision to examine whether co-opting former High Court judges as women members of violates Article 220 is both timely and significant. It highlights the tensions that can arise between progressive judicial directions and entrenched constitutional safeguards. As the court proceeds, it will not only shape the future of women’s representation in the legal profession but also clarify the permissible boundaries of Article 220’s . The outcome is awaited by bar councils, advocates, and constitutional law experts alike.
