Article 124(3) of the Indian Constitution and the Distinguished Jurist Route

Context

1. At the 13th Convocation of National Law University Delhi, Supreme Court Justice Ujjal Bhuyan highlighted that the distinguished jurist provision under Article 124(3) has never been used.
2. He suggested that eminent jurists and legal scholars could broaden the expertise of the Supreme Court Bench and strengthen its ability to address complex constitutional and public-law issues.

Constitutional Provision

1. Article 124(3) provides three alternative eligibility routes for appointment as a Supreme Court judge. A person must be an Indian citizen and:
   • have been a High Court judge for at least five years;
   • have been an advocate of a High Court, or of two or more High Courts in succession, for at least ten years; or
   • be, in the opinion of the President, a “distinguished jurist.”
2. The first two routes have traditionally been used, while the distinguished jurist route has never been exercised.
3. Article 217 deals with the appointment of High Court judges. A similar provision for distinguished jurists was introduced through the 42nd Constitutional Amendment Act, 1976, but was removed by the 44th Constitutional Amendment Act, 1978.

Constitutional Rationale

1. The distinguished-jurist provision emerged during the Constituent Assembly debates on 24 May 1949.
2. H.V. Kamath argued that the Supreme Court should not draw its talent only from judges and practising advocates. He supported including persons with exceptional legal and juristic learning, even without courtroom experience.
3. M. Ananthasayanam Ayyangar supported the idea, stressing the importance of specialised expertise in constitutional and public law.
4. B.R. Ambedkar did not oppose the principle but expressed reservations about the terminology, particularly the word “distinguished.” The provision was ultimately incorporated into the Constitution.

Scope of a Distinguished Jurist

1. The Constitution does not define “distinguished jurist” or prescribe specific criteria for determining who qualifies.
2. The provision may potentially cover eminent legal experts whose distinction is demonstrated through legal scholarship, jurisprudence, teaching, research or other significant contributions to law.
3. A practical difficulty is that full-time law teachers generally face restrictions on simultaneously practising law under Bar Council rules. Eminent academics may therefore lack the courtroom experience traditionally associated with judicial appointments.

Significance

1. Activating Article 124(3) could:
   • broaden the pool of candidates for the Supreme Court;
   • strengthen expertise in constitutional and public law;
   • bring perspectives from legal scholarship and jurisprudence;
   • enrich judicial reasoning on complex legal and institutional issues.
2. It thus provides a constitutionally recognised alternative route for bringing specialised legal expertise into the country’s highest court.

Institutional Challenges

1. The main challenge is establishing a credible mechanism to identify and assess suitable jurists.
2. The absence of clear criteria raises questions regarding:
   • who qualifies as a distinguished jurist;
   • who identifies potential candidates;
   • what standards should be applied; and
   • how merit and judicial independence should be protected.
3. Although Article 124(3) refers to the President’s opinion, appointments to the Supreme Court presently operate through the collegium-based system. This raises the institutional question of how the constitutional jurist route can be practically integrated into the existing appointment process.

Way Forward

1. A transparent framework could be developed around demonstrable legal scholarship, constitutional expertise and professional distinction.
2. Any selection process should uphold merit, judicial independence and institutional credibility.
3. Greater interaction between the judiciary and legal academia could help identify suitable candidates while preserving the existing constitutional framework.

 FAQs

Q1. What is unique about Article 124(3)(c)?
It allows consideration of a person as a Supreme Court judge on the basis of being a “distinguished jurist”, without requiring the specific judicial or advocacy experience prescribed under the other two routes.

Q2. Does the Constitution define a distinguished jurist?
No. Article 124(3) uses the expression but does not provide detailed eligibility criteria for determining who qualifies.

Q3. Why was this provision included in the Constitution?
The Constituent Assembly intended to keep the Supreme Court’s potential talent pool wider than judges and practising advocates by allowing exceptional legal and juristic expertise to be considered.

Q4. How could distinguished jurists contribute to the Supreme Court?
They could provide specialised perspectives on constitutional law, public law, jurisprudence and legal scholarship, particularly in complex constitutional matters.

Q5. What is the main challenge in using this route?
The absence of objective criteria makes candidate identification difficult. Its practical operation must also be reconciled with the contemporary collegium-based appointment process.

Q6. What happened to the corresponding High Court provision?
The 42nd Constitutional Amendment Act, 1976 introduced a similar provision for High Courts, but the 44th Amendment Act, 1978 subsequently removed it.

Q7. Has Article 124(3)(c) ever been used?
No. The distinguished jurist route has never been used to appoint a judge to the Supreme Court since the Constitution came into force.