Why India Never Appointed a Distinguished Jurist to SC

DISTINGUISHED JURIST ROUTE REMAINS UNUSED FOR SUPREME COURT

Why in the News ?

Supreme Court Justice Ujjal Bhuyan recently highlighted the continued non-use of Article 124(3), which permits appointment of a “distinguished jurist” as a Supreme Court judge. The provision has remained unused for over seven decades despite offering an alternative route beyond judges and practising advocates.

Constitutional Provision and Appointment Routes

•     Three pathways: Article 124(3) recognises eligibility through five years as a High Court judge, ten years as a High Court advocate, or being a distinguished jurist in the President’s opinion.
•     Undefined category: The Constitution does not specify a precise definition or minimum experience for a distinguished jurist, potentially allowing eminent legal scholars and academics to qualify.
•     Original intention: The Constituent Assembly included this category to broaden the field of selection and introduce diversity in professional backgrounds within the Supreme Court.
•     Academic expertise: H.V. Kamath argued that outstanding legal and juristic scholarship need not be confined to judges and practising advocates.
•     International precedent: The Assembly discussed Justice Felix Frankfurter, a Harvard Law School professor for many years before his appointment to the U.S. Supreme Court, as an example of academic expertise enriching judicial institutions.

Why the Distinguished Jurist Route Remains Unused

•     Collegium barrier: Although Article 124(3) mentions the President’s opinion, the contemporary appointment process involves the Supreme Court Collegium, making institutional recommendation an important practical prerequisite.
•     Professional imbalance: Supreme Court appointments have overwhelmingly come from High Court judges, with relatively few direct elevations from the Bar and none through the jurist category.
•     Courtroom experience: Critics argue that legal academics may lack sufficient litigation, procedural and courtroom exposure required for judicial decision-making.
•     Practice restriction: Under Bar Council of India Rules, full-time salaried law teachers generally cannot simultaneously practise as advocates, limiting opportunities to combine academic scholarship with courtroom experience.
•     Bridging divide: Relaxing such restrictions could help connect “law in books” with “law in action”, potentially creating a stronger pool of academically distinguished candidates.
•     Reform debate: Greater use of the provision could enhance professional diversity and intellectual depth in the Supreme Court, provided transparent eligibility criteria and safeguards for judicial independence are established.

 About Supreme Court and Constitutional provisions:

•     Article 124: Provides the constitutional framework for the establishment and composition of the Supreme Court, including qualifications and appointment of judges.
•     Judicial diversity: The distinguished-jurist provision reflects the constitutional vision of bringing different forms of legal expertise into the higher judiciary.
•     High Court qualification: Article 217 governs appointment as a High Court judge. A similar distinguished-jurist provision inserted through the 42nd Constitutional Amendment was later removed by the 44th Amendment.
•     Judicial restraint: Felix Frankfurter became associated with judicial restraint, emphasising appropriate respect for the constitutional roles of elected branches.
•     Constitutional balance: Judicial appointments seek to combine legal competence, independence, integrity and institutional experience, while maintaining public confidence in the judiciary.