Justice Ujjal Bhuyan of the Supreme Court has raised a thought-provoking question regarding the non-appointment of ‘distinguished jurists’ as Supreme Court judges, a provision allowed by the Constitution but unused in the past 76 years. Justice Bhuyan addressed this issue during the 13th Convocation of National Law University Delhi, where he served as the convocation speaker.
Article 124(3) of the Indian Constitution provides the President with the authority to appoint a person deemed a ‘distinguished jurist’ to the Supreme Court. Despite this provision, no appointment has been made under this clause since the Constitution came into effect. Justice Bhuyan urged for a public discourse on this topic, noting the potential contributions such jurists could bring to the judiciary.
Justice Bhuyan proposed two reasons for this lack of appointments. Firstly, he suggested that prior to the collegium system, and even after its implementation, the Indian government and the collegium may not have considered Indian academia robust enough to elevate a jurist to the Supreme Court.
More plausibly, according to Justice Bhuyan, is the scenario where neither the Central Government nor the collegium has earnestly explored the provision for appointing distinguished jurists. He referred to the Constituent Assembly Debates, highlighting H.V. Kamath’s successful proposal to widen the scope of eligible candidates to include such jurists. This historic decision was intended to enrich the Supreme Court by including legal academics and professors.
Justice Bhuyan challenged the notion that academics lack the practical experience required for judicial roles, dismissing it as a superficial objection. He argued that a distinguished jurist could significantly enhance the Bench with their scholarly insights and contribute meaningfully to the judicial decision-making process.
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He referenced constitutional scholar DD Basu’s opinion, which advocates for the inclusion of capable academic jurists in the highest court, suggesting that their presence would enhance the court’s functioning. Justice Bhuyan remarked on the unfortunate neglect of this constitutional mandate and noted that other countries, such as the United States, United Kingdom, Canada, and Kenya, have successfully appointed academics to their constitutional courts.
Justice Bhuyan concluded his address by calling for renewed debate on this topic within the academic community, emphasizing the importance of revisiting and reinvigorating this dormant constitutional provision.
