Vol. 15 · pages 316–320

299PARLIAMENTARY DEBATES side. The second exception proposed to be made is with regard to a lawyer who was an ex-judge and has been enrolled, because before the Constitution came into existence there was no rule prohibiting judges, after retirement, from practice. They were free to practise and there are many cases where judges have been enrolled in the Supreme Court and are allowed to practise, but there are cases where persons, who, before the Constitution, were appointed to the High Courts and were required to give an undertaking that they would not practice in that particular High Court. Our exception says that if there is any advocate of the Supreme Court, who was an ex-judge of a High court and had given an undertaking not to practise in a particular High Court (which must be the High Court of his own province) then he shall not practise notwithstanding the provision contained in this Bill. These are the simple provisions of the Bill. Shri C. Subramaniam (Madras): What is the reason for the first exception? Dr. Ambedkar: The reason is this. Under the Bar Councils Act a special provision exists. I believe there are only now three courts which have got original jurisdiction. All other High Courts are only appellate High Courts and they have no original jurisdiction but they have been invested with special powers to make rules for the enrolment of persons on the original side. As it is not proposed to amend the Bar Councils Act, it is felt desirable to keep that provision intact. That cannot cause much difficulty, because after all when the matter is remitted back by the Supreme Court to the High Court it will in all probability and in most cases be dealt with by the appellate side of the High Court. Shri S. N. Sinha (Bihar): Some of the High Courts have got original jurisdiction in cases like probate and company law. Even in these cases are you going to prohibit? Dr. Ambedkar: Leave something for the local lawyers. Mr. Chairman : Motion moved “ That the Bill to authorise advocates of the Supreme Court to practise as of right in any High Court, be taken into consideration.”

300 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri Venkataraman (Madras): This Bill in so far as it tries to unify the bar of this country is most welcome. Not only after the establishment of the Supreme Court but even earlier, immediately after the establishment of the Federal Court, the lawyers’ conference held in Madras year after year suggested by passing resolutions that the Bar in India should be unified and there should be an All-India Bar Council and the enrolment of and disciplinary jurisdiction over all these Lawyers should be brought under one central control, namely, the All-India Bar Council. Though this bill does not go so far as that, it certainly makes a beginning in that it says that the advocates who are enrolled in the Supreme Court will be entitled to practice in the High Courts notwithstanding the fact that they have not been enrolled in such High Courts themselves. The Minister unfortunately stopped short of the very ideal which he set before himself. He said that it was his intention that the advocate who is enrolled as a member of the Supreme Court Bar should be enabled to go and appear in the province from which the case emanated even though he was not enrolled as an advocate of that court. If you merely substitute for the word “Madras” in the instance which the Hon. Minister gave by the word “Bombay” and then apply all the process step by step, which he took us through, you will find that the object, when he says is embodied in this Bill, is not carried out. I will repeat the instance myself. Suppose a case emanates from Bombay and if chances that an advocate from Madras is engaged to appear before the Supreme Court on an appeal. It is possible for the Supreme Court to remit the case not only to the appellate side of the High Court but even send it back for a finding to the original side of that court. That advocate who studied and prepared the case and spent a lot of time over it—the client too must have spent a lot of money, as the Minister said, in briefing and instructing that particular advocate—would be prevented from appearing on the original side, just because the exception has been introduced in the Bill. Let me look at the rationale of the exception introduced... Dr. Ambedkar: There is no iogic in it I confess.

301PARLIAMENTARY DEBATES Shri Venkataraman : He has aken the argument out of my mouth. Dr. Ambedkar: I do not accept logic ; I accept expediency. Shri Venkataraman : ‘So I shall proceed on the basis that there is no logic...... Mr. Chairman : May I ask the hon. Minister if a question of fundamental rights under article 22 is not involved in this? Dr. Ambedkar: We have just now heard from several Judges that they are prepared to make classifications. Shri Venkataraman : Article 22 of the Constitution gives the right to legal practitioners to appear in all courts. This Act will certainly be challenged by some enterprising lawyer some day and there is no doubt about it. Apart from that I want to bring to the attention of the Hon. Minister that he will lose nothing by deleting part (a) of the proviso to clause 2. I understand that in Bombay also they have abolished the distinction between the advocates of the original side and the advocates of the appellate side….. Dr. Ambedkar: They allow them to go from one side to the other after a certain period. Shri Venkataraman: The practice which was hitherto prevailing of practitioners on the appellate side not being entitled to appear in cases on the original side has gone and today the preactitioners on the appellate side can still appear on the original side as in the Madras High Court. So far as the Madras high Court is concerned there is no distinction between a practitioner on the appellate side and a practitioner on the original side. An advocate of the Madras High Court can appear on both the appellate and original sides…… Dr. Ambedkar: They go without shoes also. Shri Venkataraman: There are customs and customs. I can see quite a few of people here which would be appalling to my countrymen. We are not concerned with footwear here but with the legal rights of the practitioners. A practitioner of the Bombay High

302 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Court is also placed on the same footing. The difference between the Bombay and Madras High Courts consists in this : whereas in the High Court of Madras there is no dual system, an advocate need not necessarily be instructed by an attorney or solicitor for appearing on the original side, in the appellate side they have got that system in which the practitioner on the original side must be instructed by a solicitor or an attorney. I can understand solicitors and attorneys insisting on their privileges being preserved for them. So far as their rights are concerned, let them be preserved. Let any practitioner appear but let him be instructed or briefed by an attorney or solicitor. If that is the object it can very well be preserved and achieved by deleting the words “ to plead ”. Any practitioner of the Supreme Court can be prevented from going before the High Court of Bombay or any other High Court on the original side. This Bill as stands with part (a) of the proviso will make it impossible for a practitioner of the Supreme Court to appear on the original side notwithstanding the fact that he had appeared in that particular case itself before the Supreme Court and the case had been remitted to the original side of that court. An Hon. Member : Let him continue tomorrow. It is five o’clock. The House then adjourned till a Quarter to Eleven of the Clock on Friday, the 20th April, 1951. * SUPREME COURT ADVOCATES (PRACTICE IN HIGH COURTS ) BILL —concld. Mr. Speaker: We will now proceed to legislative business, namely: The further consideration of the motion moved by Dr. Ambedkar yesterday: “ That the Bill to authorise advocates of the Supreme Court to practise as of right in any High Court, be taken into consideration.” Shri Venkataraman (Madras) : Yesterday, I was submitting that this Bill is a welcome measure, but that the * P. D., Vol. 10, Part II, 20th April 1951, pp. 7129-34.

303PARLIAMENTARY DEBATES proviso militates against the very object of the Bill. I was trying to show how…….. The Minister of Law (Dr. Ambedkar): To cut short the proceedings, I may say I am prepared to accept the amendment, subject of course, to other understandings. Shri Venkataraman: I am very grateful to the hon. Law Minister for accepting the suggestion and so I whole-heartedly support the Bill without clause (a) in the proviso. Pandit Thakur Das Bhargava (Punjab): I rise to support the Bill……… ……With regard to proviso (b) I have a point to submit. Proviso (b) is to the effect: “(b) to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.” I submit that the prohibition to practise in the High Court by a man who is an ex-Judge of that High Court should not depend on any undertaking. Public policy requires that an ex-Judge of a high Court should not practise in that Court, but the proviso makes it conditional upon an undertaking having been given. There are many High Courts where no undertakings have been taken. Therefore, if ex-Judges are to be prohibited from practising in the particular Court, it should be independent of any undertaking given. There is an Article in the Constitution prohibiting all ex-Judges from practising in any Court—not merely in the Court where he was a Judge but in all other Courts. I submit proviso (b) militates against that. This proviso would allow an ex-Judge to practise in a High Court if he has not given an undertaking. The Constitution, however, says that all ex-Judges are prohibited from practising in any High Court. Dr. Tek Chand (Punjab): Judges appointed after the coming into force of the Constitution. Dr. Ambedkar: Yes, that is the rule.