Speaking at the National Law University convocation in Delhi on August 30, Justice Bhuyan described Article 124(3)(c) as one of the country’s great “unused mandates” and questioned why India has continued to rely on veteran courtroom lawyers and career judges for appointments to the Supreme Court.
Article 124(3)(c) permits the appointment of a person who is, “in the opinion of the President, a distinguished jurist.”
The Constitution, however, does not provide for the appointment of a “distinguished jurist” as a judge of a high court. Article 217 provides only two selection pools: judicial officers with at least 10 years of experience and advocates with a minimum of 10 years of practice.
An option to appoint a distinguished jurist to a high court was introduced through the 42nd Amendment by the Indira Gandhi government during the Emergency in 1976. The provision was later removed by the 44th Amendment enacted by the Morarji Desai government.
The question of who qualifies as a “jurist” therefore remains significant. The Constitution does not define the term, nor is it specifically defined in any statutory enactment. Justice Bhuyan, speaking at the National Law University event on August 30, observed that Article 124(3)(c) had not been used during the last 76 years.
According to Justice Bhuyan, although the expression has not been defined, it would mean “all those eminent persons who are involved in the practice, teaching and research of law.” He said it was not necessary for a person to practise law before a court to be recognised as a “distinguished jurist”.
Since lawyers and judges are separately listed under Article 124(3), Justice Bhuyan said the expression “distinguished jurist” would imply a community of people who are neither practising lawyers nor judges but are skilled in law or knowledgeable in the field.
In India, the term “jurist” is loosely used, often to describe a lawyer or judge of repute. Justice Bhuyan said that in the context of Article 124(3), the term extends beyond these two categories.
Section 3 of the Judges (Inquiry) Act, 1968, which deals with investigations into the misbehaviour or incapacity of a judge, also refers to a “distinguished jurist”. The provision deals with the composition of the committee constituted to investigate allegations against a judge.
The first two members of the committee are selected from among Supreme Court judges and chief justices of the high courts. The third member is required to 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.
Article 124 provides that a Supreme Court judge is appointed by the President after consultation with such judges of the Supreme Court and the high courts in the states as the President may deem necessary. Judicial pronouncements since the 1990s have established a collegium of judges, headed by the Chief Justice of India and the four senior-most judges, to recommend names for appointment to the Supreme Court.
In 2014, Parliament enacted the National Judicial Appointments Commission Act, seeking to replace the collegium system with a six-member National Judicial Appointments Commission for selecting and appointing judges to constitutional courts.
Besides the Chief Justice of India, two senior-most Supreme Court judges and the Union law minister, the proposed NJAC included two eminent persons in the appointment process. No qualifications were prescribed for selecting the eminent persons. They were to be selected by a committee comprising the Chief Justice of India, the Prime Minister and the Leader of Opposition.
One of the two eminent persons was required to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, religious minorities or women.
In October 2015, a five-judge Supreme Court bench in the Advocates-on-Record Association case struck down the NJAC Act by a 4:1 majority, holding that it affected the independence of the judiciary.
The judgment found the expression “eminent persons” to be vague and rejected the idea of including “lay persons” in the judicial selection process on the ground that it could affect the “primacy of judiciary”, particularly because the law allowed two NJAC members to veto any recommendation.
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 Article 124(3)(c) has remained unused because the Centre and the Supreme Court have consistently ignored the provision. Justice Bhuyan identified another possible reason: an impression within the collegium and the government that legal academics lack practical experience.
The idea of bringing distinguished jurists into the Supreme Court was present during the framing of the Constitution. On May 24, 1949, H.V. Kamath moved a proposal to include a provision allowing a distinguished jurist to be appointed as a Supreme Court judge. The proposal was accepted by Bhim Rao Ambedkar, who had doubts about using the terms “distinguished” or “eminent” but left the choice to the Drafting Committee.
During discussions on the issue, some Constituent Assembly members were informed about President Roosevelt’s successful appointment of Harvard University professor Philip Frankfurter as a US Supreme Court judge. Frankfurter subsequently became an eminent judge of that court.
In the United States, the practice of appointing academics to the Supreme Court continues, with the experience described as rewarding. India also has no shortage of legal academics. The issue, as Justice Bhuyan’s remarks underline, is whether the constitutional provision will finally be used.
After 76 years without an appointment under Article 124(3)(c), Justice Bhuyan’s remarks have brought renewed attention to a constitutional route that remains unused. The next move lies with the collegium.
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