Supreme Court judge highlights unused clause
Justice Ujjal Bhuyan noted that Article 124(3)(c) allowing appointment of distinguished jurists to the Supreme Court has never been used in 76 years
Justice Ujjal Bhuyan of the Supreme Court pointed out that a constitutional provision for appointing distinguished jurists as Supreme Court judges has remained unused since Independence. Speaking at the National Law University convocation in Delhi on August 30, he questioned why India has overlooked legal researchers and professors for 76 years.
According to Article 124(3)(c) of the Constitution, the President may appoint any citizen who, in the opinion of the President, is a distinguished jurist, to the Supreme Court. This clause is distinct from the two other qualification paths: serving as a high court judge for at least five years or practising as an advocate in a high court for at least ten years.
Justice Bhuyan explained that the term 'distinguished jurist' is not defined in the Constitution but would include eminent persons involved in the practice, teaching, and research of law. He clarified that this category is separate from practising lawyers and judges already covered under other parts of Article 124(3).
The Judges (Inquiry) Act, 1968, uses the term 'distinguished jurist' in specifying the third member of the committee to investigate judicial misbehaviour, chosen by the Lok Sabha Speaker or Rajya Sabha Chairman. In practice, this role has typically gone to a senior advocate of repute.
Justice Bhuyan noted that countries like the United States, Great Britain, Canada, and Kenya have appointed distinguished academics to their constitutional courts. He referenced the historical example of President Roosevelt appointing Harvard professor Philip Frankfurter to the US Supreme Court.
He suggested two reasons for the clause's non-use: consistent neglect by the Centre and the Supreme Court, and a possible belief among the collegium and government that legal academia lack practical experience.
The provision was proposed by HV Kamath during the Constituent Assembly debates on May 24, 1949, and accepted by BR Ambedkar, who left the choice of wording to the Drafting Committee. Despite its existence, no distinguished jurist has ever been appointed to the Supreme Court under this clause.
Justice Bhuyan concluded that it is now for the collegium to take the first step in using this constitutional provision to diversify the bench with legally trained minds from academia.
