Explained: The unused constitutional clause on Supreme Court appointments

Article 124(3)(c) allows any citizen who, "in the opinion of the President, a distinguished jurist", to be appointed as a judge of the Supreme Court

India’s Constitution contains a clause designed to bring eminent scholars and academics to its highest court. Yet, the provision has never been used, leading a sitting Supreme Court judge to recently describe it as one of the country’s great "unused mandates."

Supreme Court judge Justice Ujjal Bhuyan questioned why India has overlooked legal researchers and professors for 76 years (FILE PHOTO)

Speaking at the National Law University convocation in Delhi on August 30, Supreme Court judge Justice Ujjal Bhuyan questioned why India has overlooked legal researchers and professors for 76 years, relying only on veteran courtroom lawyers and career judges to make appointments to the country’s top court.

The constitutional framework

According to Article 124(3) of the Constitution, which prescribes the qualifications to be a judge of the Supreme Court, a candidate must be an Indian citizen and have served as a high court judge for a minimum of five years, or have practised as an advocate in a high court for at least 10 years.

Article 124(3)(c) also allows the appointment of anyone who is, "in the opinion of the President, a distinguished jurist."

To be sure, the Constitution does not provide for the appointment of a “distinguished jurist’ as a judge of the high court.

Article 217 of the Constitution only provides two selection pools – judicial officers (having at least 10 years of experience) or advocates with a minimum of 10 years of practice. An option to appoint a distinguished jurist to the high court was added by the 42nd Amendment by the Indira Gandhi government during the Emergency in 1976 but was scrapped by the 44th Amendment by the Morarji Desai government.

But who qualifies to be a ‘jurist’? Does the Constitution define it? Is it specified in any of the statutory enactments? And more importantly, has this gap been tapped by the constitutional courts?

Defining jurist

Justice Ujjal Bhuyan of the Supreme Court, speaking at a convocation at National Law University on August 30, observed that Article 124(3)(c) had not been used in the last 76 years. He said this expression has not been defined but would mean “all those eminent persons who are involved in the practice, teaching and research of law.”

Justice Bhuyan was of the view that it was not necessary for a person to practice law before a court to be acknowledged as a ‘distinguished jurist’. Since lawyers and judges are already enlisted separately under this Article, the expression ‘distinguished jurist’ would imply a community of people who are not practising lawyers or even judges, but who are skilled in law or knowledgeable in the field of law.

In India, the term ‘jurist’ is loosely applied, often to describe a lawyer or a judge of repute. Justice Bhuyan said that in the context of Article 124(3), it extended beyond the above two categories – judges and lawyers.

Section 3 of the Judges (Inquiry) Act, 1968, which deals with the investigation into misbehaviour or incapacity of a judge, does make a reference to the term, “distinguished jurist” when it refers to the composition of the committee to probe misbehaviour or incapacity of the judge. The first two members of this committee would be chosen from among the judges of the Supreme Court and the chief justices of the high courts. The third member, it says, would be a person who, in the opinion of the Lok Sabha Speaker or the Rajya Sabha Chairman, is a distinguished jurist. Invariably, the presiding officers have selected a senior advocate of repute and standing as the third member.

Eminent person

Article 124 provides that a judge of the Supreme Court is to be appointed by the President after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary. Judicial pronouncements since the 1990s provide for a collegium of judges, headed by the Chief Justice of India (CJI) and the four senior-most judges, to recommend names for appointment as judges of the Supreme Court.

In 2014, Parliament enacted the National Judicial Appointments Commission (NJAC) Act, which intended to replace the collegium with a six-member NJAC for selection and appointment of judges of constitutional courts. Besides the CJI, two senior-most judges and the Union law minister, two eminent persons were to be part of the appointment process.

No qualifications were prescribed for selection of eminent persons except that they were to be selected by a committee comprising the CJI, Prime Minister and Leader of Opposition. One of the eminent persons had to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, religious minorities or women.

In October 2015, a five-judge bench of the Supreme Court, in the Advocates-on-Record Association case, by a 4:1 majority, struck down the NJAC Act on the ground that it affected the independence of the judiciary. The judgment found the expression ‘eminent persons’ to be vague and discarded the thought of including ‘lay persons’ in the judicial selection process to affect the “primacy of judiciary”, more particularly, since the law allowed two members of NJAC to veto any recommendation.

An evolving practice

Nobody doubts that judicial appointments should represent diversity. The point Justice Bhuyan makes is that, in the United States, Great Britain, Canada, and Kenya, distinguished academics have been appointed as judges of constitutional courts.

The 2015 verdict which knocked down NJAC did argue against replicating systems abroad, saying, “It is imprudent to ape a system prevalent in an advanced country, with an evolved civil society.”

At the same time, a three-judge bench of the top court, in the 2014 case Registrar General, High Court of Madras v R Gandhi, did make a contrary point. “Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity, therefore, in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions.”

There can be two reasons why the appointment of a “distinguished jurist” has not materialised so far.

Professor Upendra Baxi, a leading legal scholar, has argued that the provisions under Article 124(3)(c) have remained unused because the Centre and the Supreme Court have consistently ignored them. The other reason, justice Bhuyan said, was a possible impression in the minds of the collegium and the government that the legal academia lack practical experience.

While drafting the Constitution, HV Kamath moved a proposal on May 24, 1949, to include a provision to appoint a distinguished jurist as a Supreme Court judge. The proposal was accepted by Bhim Rao Ambedkar, who had doubts about using “distinguished” or “eminent” but left the choice to the Drafting Committee.

At the time this issue was discussed, some of the Constituent Assembly members were told about President Roosevelt’s successful appointment of Harvard University professor Philip Frankfurter as a US Supreme Court judge, who went on to become an eminent judge of that court.

In the US, this practice still continues as the experience has been rewarding. Undoubtedly, there is no dearth of law academia in India. It’s a question of making a start. Justice Bhuyan's remarks have served as a timely reminder. It is now for the collegium to take the first move.