Distinguished Jurist’ and the Supreme Court

Why in News?

Recently, Justice Ujjal Bhuyan of the Supreme Court highlighted an unused constitutional provision concerning the appointment of a “distinguished jurist” as a Supreme Court judge.

While addressing the 13th Convocation of National Law University, Delhi, he noted that although the Constitution has been in force for more than 76 years, no person has so far been appointed to the Supreme Court through this route.

Constitutional Provision: Article 124(3)

Article 124(3) lays down the qualifications for appointment as a judge of the Supreme Court. A person must be a citizen of India and satisfy any one of three alternative conditions.

A person may have served as a High Court judge for at least five years. Alternatively, the person may have been an advocate of a High Court, or of two or more High Courts in succession, for at least ten years. The third route is available to a person who is, in the opinion of the President, a “distinguished jurist.”

The first two routes have been used in practice, whereas the distinguished jurist route has never been utilised for appointing a Supreme Court judge.

Who is a “Distinguished Jurist”?

The Constitution does not define the expression “distinguished jurist.” It is generally understood to refer to an eminent person with exceptional expertise in legal scholarship, jurisprudence, constitutional law, legal research or teaching.

The provision potentially allows a highly accomplished legal academic or scholar to become a Supreme Court judge even without having first served as a High Court judge or having the prescribed period of courtroom practice. Justice Bhuyan has similarly described the expression as covering eminent persons involved in the practice, teaching and research of law.

Historical Background

The provision emerged during the Constituent Assembly debates in 1949. H.V. Kamath proposed the inclusion of a distinguished jurist so that the pool of potential Supreme Court judges would not be restricted only to practising lawyers and judges.

The idea was supported during the debates, including by Dr. B.R. Ambedkar. Comparative examples of academics entering constitutional courts were also discussed in this context.

Position in High Courts

The Constitution originally did not provide a distinguished-jurist route for High Court appointments under Article 217.

During the Emergency period, the 42nd Constitutional Amendment Act, 1976 introduced such a provision for High Courts. However, the 44th Constitutional Amendment Act, 1978 subsequently repealed it. Thus, the distinguished-jurist route currently remains specifically associated with Supreme Court appointments under Article 124(3)(c).

Why Could Distinguished Jurists Add Value?

Diversification of the Bench

Distinguished legal scholars could bring perspectives based on academic research, jurisprudence and comparative constitutional law, thereby broadening the professional backgrounds represented on the Supreme Court.

Constitutional and Public-Law Expertise

The Supreme Court frequently deals with complex questions involving constitutional interpretation, fundamental rights, federalism, administrative law and public policy. A jurist with extensive academic expertise could contribute specialised theoretical and comparative perspectives to such cases. Justice Bhuyan argued that such scholarship could contribute to the Court's decision-making.

Broader Legal Perspective

Unlike a career path centred primarily on courtroom practice, academic legal work often involves long-term research, comparative studies and theoretical analysis. This can potentially complement the practical experience of judges and advocates already represented on the Bench.

Why Has the Provision Remained Unused?

Limited Institutional Exploration

One explanation discussed by Justice Bhuyan is that the provision may not have been seriously explored by successive governments and, later, the Collegium. He suggested that the issue deserves renewed consideration.

Collegium System

Under the contemporary system of judicial appointments, Supreme Court appointments involve the Supreme Court Collegium. Therefore, although Article 124(3)(c) refers to the President's opinion, the constitutional provision operates within the modern judicial-appointment framework, including the Collegium's role.

Separation Between Academia and Legal Practice

There is a structural separation between full-time legal academia and courtroom practice. This can make the career paths of legal scholars quite different from those of advocates who traditionally enter the higher judiciary.

Absence of a High Court Route

Since the distinguished-jurist provision for High Courts was removed by the 44th Amendment, an academic jurist does not have an equivalent constitutional route through the High Courts before potentially being considered for the Supreme Court.

Judicial Career and Seniority

The higher judiciary has traditionally developed through judicial and practising-lawyer career pathways. Directly appointing an academic jurist, particularly one without prior judicial experience, could therefore raise questions concerning judicial seniority and institutional integration.

Use as Amicus Curiae

Legal academics and specialists can already contribute to Supreme Court proceedings as amicus curiae, or “friends of the court,” particularly in complex matters. This provides one institutional mechanism through which specialised academic expertise can assist judicial decision-making without appointment to the Bench.

Key Constitutional Provisions