Vol. 15 · pages 321–325

304 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES * Mr. Chairman: The question of amendments will come later. Perhaps it may be that after the Hon. the Law Minister has given his reply many of the doubts of the hon. members may be cleared up. Then we can think of the amendments. Dr. Ambedkar: Most of the questions that have been raised in the course of speeches delivered by hon. Members have very little to do with the merits of the Bill. They deal with a subject which is more relevant to the unification of the Bar. As I said yesterday, this Bill primarily does not aim at the unification of the Bar. The aim of the Bill is a very limited one and is to remove the difficulties that are caused by enrolment of advocates by the High Court and by the Supreme Court in their independent jurisdiction. Clients have suffered on account of the fact that lawyers whom they engage in the Supreme Court are not permitted to appear in a High Court when the same matter is remitted by the Supreme Court to the High Court. That is the limited purpose of this Bill. But in view of the general desire that while achieving this limited purpose something might be done in the direction of unifying the Bar, I have accepted two proposals which really are outside the immediate object of the Bill. One is to permit all lawyers who are enrolled in the Supreme Court to practise in all the high Courts which of course means right to practise in all courts subordinate to the -different High Courts. The second point which I have accepted is to remove the restrictions originally placed in the Bill that the right to practise which is being given by this Bill to advocates enrolled on the Supreme Court shall be confined only to the appellate side. The clause is being deleted. I have listened to the various speeches and all that I can say is that I realise the difficulties and I have a great deal of sympathy with the point of view that has been expressed by the various Members. When there is an opportunity and time the Government of India will no doubt consider this matter and bring forth a comprehensive measure which would * P. D., Vol. 10, Part II, 20th April 1951, pp. 7140-42.

305PARLIAMENTARY DEBATES bring about the unification of the Bar in India which is a subject at the heart of many Members here. I will, therefore, not go into that aspect of the question. Then there remains only one question which was raised by my friend Pandit Thakurdas Bhargava which also, I think, is quite outside the merits of the Bill. There is no doubt about it that anything that we do here in Parliament must always be subject to the provisions of the Constitution. If article 22 of the Constitution permits a legal practitioner to be engaged by an accused person to defend himself and if by the rules of enrolment enforced either by the High Court or by the Supreme Court a certain person does not become a legal practitioner within the meaning of the Constitution, in my mind there can be no doubt that the rules made by the High Court or by the Supreme Court would be at variance with the Article of the Constitution and the Constitution would prevail. At this moment all I would like to say is that I am not quite certain in my mind in what sense the term ‘legal practitioner’ is used in the Constitution. Whether it is used in the general popular sense that anybody who can go to a court of law and appear in any matter is a legal practitioner, or whether the Constitution uses the term in the technical sense that a legal practitioner means a person defined to be a legal practitioner either in the Legal Practitioners Act or in the rules made by the High Court or the Supreme Court, is a matter on which I do not propose to express any opinion. My friend Pandit Thakur Das will also realise that even the Legal Practitioners Act does not give the general right to practise to all those who are defined as legal practitioners. There are fields which are earmarked or rather which are limited to certain classes. For instance the pleaders and the mukhtiars are no doubt legal practitioners within the meaning of the Act, but as he knows they have no general right to practise, nor is their right to practise a permanent one. Their certificates are annual certificates and when these certificates are exhausted they cease to be legal practitioners. All these things to my mind are quite irrelevant for the purposes of the Bill and they will no doubt take care of themselves when the matter is raised before a court of law. I do not think there is any other thing that calls for any explanation.

306 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Chairman : The question is: “ That the bill to authorise advocates of the Supreme Court to practise as of right in any High Court be taken into consideration.” The motion was adopted. Clause 2.—(Right to practise in any High Court) Mr. Chairman: May I know whether the Hon Minister, is accepting any of the amendments? Dr. Ambedkar: I am not accepting any amendment except No. 7 by Shri Ahmed Meeran to delete part (a) of the Proviso. But of course my friend will realise that some little redrafting will be necessary because if (a) goes (b) will have to be renumbered. * Mr. Chairman : I think the Hon. Minister wishes to reply so far as this part of the question is concerned. Dr. Ambedkar: My hon. Friend has really explained the position and I do not think I have very much to add : but to make it simpler than he has done, the position is this. Article 220 of the Constitution applies to future Judges who have taken the position of High Court Judges after the commencement of the Constitution. Their going to practise either before the Supreme Court or before any Court, whether a High Court or subordinate court, cannot arise at all. Dr. Tek Chand: In India. Dr. Ambedkar: Yes, in India. Because, article 220 specifically says so. We are really dealing with the case of High Court Judges who were Judges before the Constitution came into existence. As my hon. friend pointed out, those Judges of the High Court before the commencement of the Constitution may be divided for the purpose of argument, into two classes: those who had given an undertaking that they will not practise in their Court and those who had not given an underaking. All that this proviso seeks to do is to bind down those High * P. D., Vol. 10, Part II, 20th April 1951, pp. 7147-49.

307PARLIAMENTARY DEBATES Court Judges who had already given an undertaking. That is the simple position. Of course, it would be perfectly possible for this House to widen the scope of the proviso and to say that no High Court Judge even though he may not have given an undertaking should be permitted to practise; that is within the power of the legislature. But, the point is this. Those people accepted the positions on the definite understanding that they will be permitted to practise after their retirement and it would be wrong and unfair now for us to make a retrospective piece of legislation and say that even though they did not give an undertaking, they will still be bound down to this new rule, namely, that they shall not practise. That is why sub-clause (b) is so restricted and is made applicable only to those who have given an undertaking. Therefore, it creates no kind of injustice. Shri Naziruddin Ahmed: May I point out that the proviso (b) is not confined to those Judges who were Judges before the Constitution ? The proviso says “to practise in a High Court of which he was at any time a Judge………….., and not before the Constitution. Dr. Ambedkar: The point is, the other question does not arise because it has been dealt with categorically by the constitution. Shri Naziruddin Ahmed: That if what I say. Dr. Ambedkar: Why do you want to do something that the Constitution has done ? There is no question of undertaking as such. That matter has been finally settled by the Constitution both in the case of the Judges of the Supreme Court and in the case of the Judges of the High Courts. We are dealing with a pass which was uncovered by law and was regulated only by promises, conventions and undertakings. Mr. Chairman : Would the Hon. Minister clarify one point more? Were those Judges who wanted to get their right of practice after the Constitution was passed, given an option to resign and cease to be Judges ? Dr. Ambedkar: They knew the position and some of them, when the Constitution was on the anvil.—I know two or three

308 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES gentlement—resigned, because they would not accept that position. Everybody knows that. Shri J. R. Kapoor: May I say for the information of the House that Judges were given the option to resign and there have been some cases of resignation. There was one in Allahabad. One of the Judges of the Allahabad High Court resigned merely because of this new article. Mr. Chairman: There was one in Calcutta High Court also. Dr. Ambedkar: For the information of the House. I might mention that every Judge of a High Court now who has retired has given an undertaking not to practise. There are only two gentlemen, fortunately they are alive, who have not given that undertaking (An hon. Member: One is here) The scope of what was called a trouble is so limited. Mr. Chairman: Mr. Meeran may move the amendment. Dr. Ambedkar: That has already been moved. Shri Venkataraman: I only spoke on it in the general discussion. Mr. Chairman : May I know whether hon. Members agree that this bill could be put through in five minutes? Several Hon. Members: Yes. Shri J. R. Kapoor: I would like to have a couple of minutes while clause 1 is taken up, because I have strong feelings on the subject. Mr. Chairman: The House will stand adjourned to 2-35 P.M. The House then adjourned for Lunch till thirty-five Minutes Past two of the Clock. The House reassembled after lunch at Thirty Five Minutes passed two of the Clock. (PANDIT THAKUR DAS BHARGAVA IN THE CHAIR).