Distinguished Jurist in Supreme Court

Context

Article 124(3) allows appointment of a distinguished jurist as a Supreme Court judge, but it has never been invoked in more than 76 years, which has raised concerns about diversity, legal academia and collegium system of appointment to the higher judiciary.

Key Highlights

• Three pathways are provided under the Constitution of India for the appointment of judges to the Supreme Court, namely as High Court judges for five years, advocates for ten years, or as a “distinguished jurist” in the opinion of President.
• The distinguished-jurist track has never been followed to fill Supreme Court seats, more than 76 years after the Constitution went into effect.
• Supreme Court Justice Ujjal Bhuyan recently said, “This is an unused mandate,” and opined that the appointment of eminent judges might help in diversifying the Bench and also improve the engagement of the Bench with the complex public-law issues.

What is a Distinguished Jurist?

• A distinguished jurist may refer to a person who has served in the legal profession, regardless of courtroom practice, who has remarkable scholarship, research or contribution in the area of law.
• It provides a forum for judges to seek out legal scholars and constitutional experts and their insights, and not just the insights of practising lawyers and judges.
• The motivation behind the provision was the notion that highly minded lawyers can make a significant contribution to constitutional adjudication without having undertaken a conventional judicial or litigation career.

Constitutional Background

• This Article addresses the formation and membership of the Supreme Court and lays down the qualifications for the appointment of Supreme Court judges.
• In the debates of the Constituent Assembly, H V Kamath had contended that judges and advocates should not be the only ones to be considered for the pool of candidates.
• He advocated for the appointment to higher courts of people with exceptional legal and juristic knowledge.
• Dr. B R Ambedkar did not object to the principle, but did question the exact choice of words, especially the word “distinguished.”
• The provision was eventually included in the Constitution.

Why Has the Provision Remained Unused?

• Dominance of the Traditional Judicial Pipeline
  • Traditionally, judges appointed to the Supreme Court hailed from High Courts, followed by appointed senior advocates from the Bar to a lesser extent.
  • Outside the legal professions, academics and jurists have hardly been considered, however, in traditional roles.
• Absence of a Clear Definition
  • The Constitution doesn’t exactly specify what is meant by the term “distinguished jurist.”
  • This leads to doubt about objective measures of scholarly contribution, constitutional expertise, legal publications, teaching, research and contributions to legal development.
• Collegium System
  • In the existing system of appointments, the Supreme Court Collegium recommends the name of the judge to the appointment process, which then goes through the constitutional procedure.
  • The legal scholar, therefore, would not be able to just apply for appointment under Article 124(3); he would first have to be identified and recommended in the existing judicial-selection mechanism.
• Separation between academia and practice
  • Under general rules of the Bar Council, full-time law teachers are not allowed to practice at the same time.
  • Such a division can hinder the practitioner’s ability to gain courtroom experience that is regarded as essential for higher office.
• Limited Institutional Exploration
  • What other option is there, Justice Ujjal Bhuyan asked, “Or maybe it was not seriously thought upon by the successive governments, and the judiciary, either?”

Why is the Provision important?

• Diversity in the judicial bench: It could diversify the Supreme Court’s Bench in terms of professional and intellectual background.
• Constitutional expertise: Constitutional law, human rights and comparative jurisprudence specialists might offer specialized views.
• Public-law adjudication: Expert judges can be involved in complex issues of constitutional interpretation, federalism, rights and government.
• Historically, there have been several jurisdictions around the world that have allowed for exceptional legal scholarship and expertise as a basis for appointment.
• Knowledge-driven judiciary: There is a need to improve the relationship between judicial practice, research of law and constitutional theory through more involvement of legal scholars.

Challenges and Concerns

• It would be necessary to have objective and transparent criteria to determine who a distinguished jurist is.
• Too much discretion might raise issues of political pressure or arbitrary picking.
• Experience in court is still relevant, especially as a litigator, in the examination of evidence, procedure and realities of the courtroom.
• Thus, academic distinction alone should not be considered as enough for judicial appointment.

Way Forward

• Supreme Court collegium and the government should take note of the provision, which otherwise languishes in Article 124(3) of the Constitution.
• Sustained contributions to constitutional law, jurisprudence and legal scholarship, as well as to the development of public law, could serve as the basis for a set of transparent criteria.
• There could be a greater level of identification through a wide consultative process with judges, senior advocates, legal academics and constitutional experts.
• The more that law schools, courts and the Bar work together, the less there will be a gap between legal scholarship and the practice of law.
• An appointment should ensure judicial independence, institutional integrity and constitutional accountability.

Conclusion

• The distinguished-jurist provision is an important constitutional experiment that is designed to make the Supreme Court more inclusive.
• The fact that it has not been used for 76 years does not necessarily mean failure by the institutions, but it does question whether the design of the Constitution is being used to its full extent in India.
• The appointment of an appropriate distinguished group of judges might ensure greater diversity in the Supreme Court, greater expertise and constitutional sophistication — if the process is open and free from bias.

Source: The Indian Express

Mains PYQ

(Q) Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (2017)

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