Distinguished jurist: The unused route to appoint an SC judge

Why in the News

A sitting Supreme Court judge has called the “distinguished jurist” route to the Supreme Court under Article 124(3) an “unused mandate” of the Constitution that “needs our serious attention”. The provision has existed since the Constitution came into force, and in more than seven decades no one has been appointed under it. The judge argued that a jurist on the Bench would “diversify the Bench” and would not be “constricted by narrow technicalities”, leaving the Court better placed on public law questions. The tension is that the text permits the appointment while the process, a collegium of judges recommending candidates and Bar rules that keep academics out of practice, has never produced one.

What is the distinguished jurist route under Article 124(3)?

1. Three routes to the Court: Article 124(3) allows the appointment of a citizen of India who has served as a High Court judge for five years, practised as an advocate for ten years, or “is, in the opinion of the President, a distinguished jurist”.
2. Two routes have staffed it: Most judges have been elevated from the High Courts, and a smaller number of lawyers have been appointed directly from the Bar.
3. The third has never been used: No distinguished jurist has been appointed to the Supreme Court since 1950.

Where did the clause come from?

1. A Constituent Assembly amendment: H.V. Kamath moved the clause on 24 May 1949, arguing that the pool of candidates should not be “necessarily confined to Judges or Advocates”.
2. The case he made: India needed a way to bring in men or women “possessed of outstanding legal and juristic learning” even if they had never practised law, and judges of the International Court of Justice at The Hague are chosen on similar terms.
3. Ambedkar’s only reservation: B.R. Ambedkar did not object to the idea, wondered whether “eminent” would fit better than “distinguished”, and left the wording to the Drafting Committee, after which the amendment went through.
4. The High Court parallel was repealed: The Constitution (Forty-second Amendment) Act, 1976, enacted during the Emergency, added a distinguished jurist route for High Court judges under Article 217, and the Constitution (Forty-fourth Amendment) Act, 1978 removed it.

What would a jurist on the Bench change?

1. Diversity of the Bench: The judge’s argument is that a jurist brings a background the Court’s present composition, drawn from High Courts and the Bar, does not.
2. Public law capacity: A jurist would not remain constricted by narrow technicalities and would be in a stronger position to deal with public law issues.
3. Academia’s influence on judging: The participation of legal academia and scholars would have a defining impact on the judicial functioning of the Supreme Court.

Why has the route never been used?

1. Two explanations from the judge: First, the central government and later the collegium took the view that Indian academia lacks the depth for elevation to the Supreme Court; second, neither the central government nor the collegium has seriously explored the provision.
2. Who counts as a jurist: The term is generally understood to cover anyone engaged in serious work in the practice, teaching or research of law, including those without courtroom experience.
3. The Bar rules shut the practice door: Bar Council rules generally prevent full-time law teachers from practising law, so an academic cannot accumulate the ten years at the Bar that the second route needs.
4. The collegium is the gate: Appointments are initiated through the collegium (the Chief Justice of India and the senior-most judges who recommend names), so a jurist must first be recommended by the Supreme Court collegium before the appointment reaches the government.
5. The one near miss: Upendra Baxi recalled in 2015 being addressed as “Judge Baxi” by a professor whom Justice P.N. Bhagwati had told that Baxi would be made a judge within months, an appointment that never materialised.
6. Baxi’s verdict: “The Presidents of India have been looking with a telescope and have not found any jurist worth appointing”, which led him to call the route “a dead issue”.
7. The Bar route still works: The most recent appointment from the Bar was Justice V. Mohana, recommended by the collegium in May 2026 and sworn in the following month.

Challenges to using the distinguished jurist route

1. The collegium evaluates what it knows: A body of judges assesses candidates on judgments written and cases argued, which an academic does not have. Eg. The Memorandum of Procedure for Supreme Court appointments sets out consultation for High Court judges and advocates and carries no chapter on jurists.
   The Fix: Add published criteria for the jurist route to the Memorandum of Procedure, covering scholarship, public law expertise and professional standing.
2. The President’s “opinion” has no test: The clause leaves the standard undefined, so any appointment invites challenge as arbitrary. Eg. Supreme Court Advocates-on-Record Association v. Union of India (2015) struck down the National Judicial Appointments Commission, leaving no body outside the judiciary to frame such a test.
   The Fix: Let the collegium adopt and publish a reasoned selection note for any jurist it recommends, as it now does for some elevations.
3. Tenure would be short: A scholar considered at the age judges are elevated would retire at 65 within a few years, which limits the institutional gain. Eg. Justice Indu Malhotra, appointed from the Bar in 2018, served three years.
   The Fix: Consider jurists in their early fifties, matching the age at which High Court judges are elevated.
4. The depth objection is asserted, not tested: The claim that Indian academia lacks depth has never been tested against a shortlist, and other supreme courts have seated academics without judicial or Bar seniority. Eg. The United States Supreme Court seated Felix Frankfurter from Harvard Law School in 1939 and Elena Kagan, who had never been a judge, in 2010.
   The Fix: Have the collegium consider a named shortlist of jurists at least once, so the objection rests on an assessment rather than an assumption.

Conclusion

The route is alive in the text and dead in practice, and the reason is procedural rather than constitutional. The status is a public call from within the Court, with no proposal from the collegium or the government to act on it. The marker to watch is whether the collegium or the Memorandum of Procedure names any criterion for the route, since without one the clause stays a dead letter.

Matching Previous Year Question

“[2024, GS2, 15 marks] Explain the reasons for the growth of public interest litigation in India. As a result of it, has the Indian Supreme Court emerged as the world’s most powerful judiciary?”