Article 220 Doesn't Block Ex-Judges' Bar Council Co-option

Supreme Court 

Why in News? 

A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana, in Swati Sinha & Ors. v. Union of India & Ors. (2026), clarified that Article 220 of the Constitution does not bar the co-option of former High Court Judges as women members of State Bar Councils. 

What was the Background of Swati Sinha & Ors. v. Union of India & Ors. (2026) Case? 

• On December 8, 2025, the Supreme Court had directed that 30% of the total seats in State Bar Councils be represented by women members of Bar Associations — 20% through election and 10% through co-option. 
• Pursuant to these directions, the Court passed an order on August 4, 2026, permitting the co-option of two women candidates to State Bar Councils, to be selected from: (1) former women Judges of the jurisdictional High Court, or (2) senior women members of the Bar of fair standing belonging to the concerned State(s)/UT(s). 
• During submissions on the eligible pool of candidates, there was broad consensus that Chief Justices of the jurisdictional High Courts could be authorised to nominate the co-opted women members. 
• Miscellaneous applications were subsequently filed seeking modification of these directions, raising objections concerning the co-option of former High Court Judges under Article 220. 
• The Supreme Court disposed of these applications, clarifying the scope of Article 220 in this context. 

What were the Court's Observations? 

• On the Scope of Article 220: 
  The Court held that Article 220, which bars former High Court Chief Justices and Judges from practising before courts and authorities in India (except the Supreme Court and other High Courts), does not extend to co-option as a member of a State Bar Council. 
• On Co-option Not Amounting to "Practice": 
  The Court observed that by virtue of becoming a member of the State Bar Council, former Judges are not required to resume practice before the respective High Courts, and therefore Article 220 poses no impediment to such co-option. 
• On Eligibility of Unsuccessful Election Candidates: 
  The Court clarified that women advocates who had contested State Bar Council elections but lost would also be eligible for nomination through co-option. 
• On the Meaning of "Senior": 
  The Court held that the expression "senior" is not confined to advocates designated as Senior Advocates, but refers to persons who have practised for a substantially long period and are found suitable by the elected members of the State Bar Council and shortlisted by the Chief Justice of the concerned High Court. 
• On the Object of the Mechanism: 
  The Bench reiterated that the initiative — being undertaken for the first time — was a welcome step towards ensuring adequate and equal representation of women in the legal profession, and would encourage more women lawyers to contest Bar Council elections. 
• On Future Legislative Action: 
  The Court noted that Parliament and the Executive could, in due course, provide an appropriate permanent mechanism for women's representation in Bar Councils, and that until then, the present mechanism would continue in force. 

What is Article 220 of the Constitution of India? 

Constitutional Text: 

• Bars 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, except the Supreme Court and other High Courts. 
• Explanation: For this Article, "High Court" excludes High Courts of Part B States as they existed before the Constitution (Seventh Amendment) Act, 1956. 

Scope: 

• Applies only to permanent Judges, not to additional or acting Judges appointed under Article 224. 
• Rationale: permanent Judges, having exercised full judicial authority, are more likely to face conflict-of-interest situations if permitted to practise in subordinate courts. 

Purpose and Rationale 

• Prevents conflicts of interest by barring judges from practising in courts where they once held authority. 
• Preserves judicial propriety, ensuring retired judges don't leverage their former position to influence proceedings. 
• Enhances public confidence in judicial impartiality and integrity. 
• Encourages retired judges toward alternative roles — arbitration, legal reform, academia — rather than subordinate court practice. 

Judicial Interpretation: 

• No landmark judgment interprets Article 220 directly, but the underlying principle features in rulings on judicial ethics and propriety. 
• Courts have stressed that post-retirement conduct must reflect judicial dignity and impartiality, with the broader principle of restraint applying even beyond the Article's literal scope. 

Relationship with Other Articles: 

• Article 217: Appointment and service conditions of High Court Judges (tenure, retirement age). 
• Article 218: Extends certain Article 124 provisions (Supreme Court) to High Courts, including removal and service conditions. 
• Article 124: Governs Supreme Court structure; a reference point for judicial independence. 
• Article 224: Provides for additional/acting Judges, who are not bound by Article 220 once their term ends. 

Significance of the Seventh Amendment (1956): 

• Clarified that "High Court" under Article 220 excludes former Part B State High Courts. 
• Removed ambiguity following the integration of princely states, ensuring uniform application of Article 220 across India post-reorganisation.