Appointment of Distinguished Jurists as Supreme Court Judges

04 Sep 2026

Tags: Polity & Constitution   Executive & Judiciary   Organization of ministries

Source: The Hindu

Context: Article 124(3) of the Constitution permits appointment to the Supreme Court (SC) through three routes, including a person who is, in the President’s opinion, a “distinguished jurist”.

• Despite this provision existing since the Constitution came into force, no legal academic or jurist has so far been appointed to the SC through this route.
• Supreme Court judge Justice Ujjal Bhuyan recently questioned why this constitutional provision has remained unused for more than 76 years.

Constitutional Qualifications for Supreme Court Judges

Under Article 124(3), a person is eligible for appointment as an SC judge if they:

• have been a High Court judge for at least 5 years; or
• have been an advocate of a High Court for at least 10 years; or
• are, in the President’s opinion, a distinguished jurist.
• Unlike the first two categories, the Constitution neither defines “distinguished jurist” nor prescribes a minimum experience requirement for this category.
• Its separate inclusion indicates that the framers intended to create a route beyond the conventional judge and practising-advocate backgrounds, potentially allowing eminent legal scholars and academics to enter the SC.

Constituent Assembly’s Intent

• The “distinguished jurist” category was introduced in the Draft Constitution to widen the professional pool from which SC judges could be selected.
• H.V. Kamath, while moving the amendment on May 24, 1949, argued that exceptional legal and juristic knowledge was not necessarily confined to judges and practising advocates.
• He cited the selection of judges to the International Court of Justice (ICJ) as an example of recognising wider forms of legal expertise.
• M. Ananthasayanam Ayyangar referred to the appointment of Felix Frankfurter, a Harvard Law School professor for 25 years, to the U.S. Supreme Court in 1939 as evidence that legal scholarship could successfully contribute to the judicial Bench.

Felix Frankfurter: An Illustrative Example

• Felix Frankfurter was appointed as an Associate Justice of the U.S. Supreme Court by President Franklin D. Roosevelt in 1939, after a long academic career at Harvard Law School.
• He became an influential advocate of judicial restraint—the principle that courts should exercise caution in overriding decisions of elected legislatures and the executive.
• His appointment was cited in the Constituent Assembly to demonstrate that deep legal scholarship need not necessarily be accompanied by a conventional judicial or litigation career.

What About High Courts?

• The Constituent Assembly had also considered allowing distinguished jurists to become High Court judges, but a proposal by Shibban Lal Saksena on June 7, 1949, was rejected.
• The 42nd Constitutional Amendment Act, 1976, enacted during the Emergency, subsequently inserted the “distinguished jurist” category into Article 217, relating to High Court appointments.
• This provision came into force in January 1977 but was removed by the 44th Constitutional Amendment Act, 1978.

Why Has the SC Provision Remained Unused?

1. Collegium and Appointment Process

• Although Article 124(3) refers to the President’s opinion, the contemporary appointment process operates through the Supreme Court Collegium.
• Therefore, a distinguished jurist would first need to be recommended by the Collegium, creating a practical institutional barrier to using this route.
• Legal scholar Upendra Baxi, whose possible appointment to the SC did not materialise, described the provision as a “dead issue” in a 2015 interview.

2. Preference for Conventional Legal Careers

• SC appointments have overwhelmingly been drawn from High Court judges, while only 11 advocates have been directly elevated from the Bar.
• This established practice leaves little space for candidates coming primarily from legal academia and scholarship.

3. Concern over Courtroom Experience

• A major argument against appointing academics is that they may lack sufficient experience in courtroom practice, procedure and judicial decision-making.
• Critics may therefore question whether exceptional theoretical knowledge alone is adequate for the demands of the SC.

Law Academics and the Practice of Law

• Full-time legal academics face institutional restrictions on practising as advocates.
• Rule 49 of the Bar Council of India Rules requires an advocate who takes up full-time salaried employment to cease legal practice while that employment continues.
• This can widen the gap between “law in books” and “law in action”, by limiting opportunities for academics to gain courtroom experience.
• In 2019, the Consortium of National Law Universities sought relaxation of this restriction to enable full-time faculty to practise in courts and bridge the gap between legal scholarship and practical litigation.

Significance of the Provision

• The “distinguished jurist” route represents a constitutional recognition that judicial excellence can emerge from multiple professional backgrounds.
• Greater inclusion of eminent legal scholars could potentially bring stronger expertise in areas such as constitutional law, comparative law, international law, technology law and emerging legal questions.
• At the same time, any such appointment would need to balance academic excellence with judicial temperament, practical legal understanding and institutional independence.

Way Forward

• The constitutional provision could be meaningfully reconsidered to determine whether eminent legal academics and jurists should form part of the pool for SC appointments.
• Clearer institutional criteria for identifying a “distinguished jurist” could reduce ambiguity while preserving the flexibility intended by the Constitution.
• Greater interaction between legal academia, litigation and judicial institutions could help bridge the gap between theoretical scholarship and practical adjudication.
• The larger issue is whether India's higher judiciary should continue to rely overwhelmingly on conventional career pathways or make greater use of the professional diversity expressly contemplated by Article 124(3)