Appointment of Distinguished Jurists as Judges Would Have Been a Disaster

 

Justice Ujjal Bhuyan has recently raised a pertinent question: why, even after 76 years of the Constitution, has the Supreme Court of India never appointed a distinguished jurist as a judge of the Court?

The question deserves serious consideration because the Constitution expressly provides for such a possibility. Article 124(3) makes a person eligible for appointment as a Judge of the Supreme Court if he or she is, in the opinion of the President, a “distinguished jurist.” Interestingly, this qualification is specifically provided for the Supreme Court and not for the High Courts. The Constitution, therefore, deliberately kept open a route for bringing persons from outside the conventional pool of judges and practising advocates directly to the Supreme Court.

Justice Bhuyan observed that when the collegium system did not exist, one explanation offered by the Central Government was that there was not sufficient depth in Indian academia for distinguished academics to be seriously considered for elevation to the Supreme Court. He also pointed to another, perhaps more probable, explanation: that neither the Central Government nor the collegium has seriously explored this constitutional provision.

The history of Article 124(3) is equally interesting. During the Constituent Assembly Debates, H. V. Kamath proposed that the pool of persons eligible for appointment to the Supreme Court should not be confined to judges and advocates and should also include distinguished jurists. The Constituent Assembly ultimately accepted the proposition.But the fact that the Constitution permits such an appointment does not necessarily mean that every eminent academic would make an effective Supreme Court judge. There is an important distinction between being a distinguished jurist and being a successful judge.

A Supreme Court judge is not merely required to possess exceptional knowledge of constitutional theory or jurisprudence. The Court deals with an extraordinarily wide range of disputes—constitutional matters, civil and criminal cases, commercial disputes, contracts, corporate law, taxation, service and employment matters, arbitration, intellectual property and numerous other areas of law.

A distinguished academic may possess extraordinary analytical ability and may have contributed significantly to legal scholarship. But judging requires a different skill set. A judge must be able to listen to competing arguments, identify the precise issues arising from the facts, apply established principles to those facts, evaluate evidence where necessary, consider precedent, and ultimately arrive at a decision that can withstand scrutiny.The challenge becomes even greater at the Supreme Court level, where a judge may hear a constitutional challenge in one matter, a commercial dispute in the next, a criminal appeal thereafter and a service-law matter immediately afterwards.Legal scholarship and judicial decision-making are therefore related, but they are not identical disciplines. There is another institutional concern. An academic career often rewards the development and defence of a particular intellectual position. Judicial office demands something different: openness to competing arguments and the willingness to modify or abandon an initial view when the law, facts or reasoning demand it. A judge cannot approach a case with a predetermined intellectual commitment.This does not mean that academics are incapable of becoming good judges. Nor does it mean that every practising lawyer or sitting judge necessarily possesses the qualities required of an exceptional judge. The point is simply that academic eminence by itself cannot be treated as an adequate substitute for judicial experience.The absence of a distinguished jurist from the Supreme Court for more than seven decades may therefore be viewed not merely as a failure to utilise Article 124(3), but also as evidence of the difficult question that the provision presents: How do we identify a distinguished jurist who possesses not only intellectual brilliance but also the temperament, breadth and practical judgment required of a Supreme Court judge?India has produced outstanding legal scholars. Names such as Upendra Baxi, Subhash Kashyap and several others immediately come to mind. Their contributions to legal scholarship and public discourse are undoubtedly significant. Yet intellectual eminence alone does not establish that a person would necessarily have been an effective member of the Supreme Court. Indeed, had the Constitution-makers intended academic distinction alone to be the decisive criterion, there would have been little reason to preserve the broader expression “distinguished jurist.The real test must therefore be higher. Article 124(3) should neither be treated as a dead letter nor invoked merely to increase the diversity of the Supreme Court's professional background. If the provision is ever used, the person chosen must be someone whose intellectual contribution to law is matched by judicial temperament, practical understanding of litigation, institutional independence and the ability to decide disputes across the entire spectrum of the Court's jurisdiction. The question, therefore, is not simply why has India never appointed a distinguished jurist to the Supreme Court? The more important question is: Do we have a distinguished jurist who can also become a distinguished judge? That is the standard that Article 124(3) should demand