With Justice Rohinton Fali Nariman’s retirement last week, the Supreme Court is short of 9 judges. One more judge, namely, Justice Navin Sinha is set to retire this week. Then, the top court will have 10 vacancies of judges, out of 34, the total sanctioned strength of judges in the Supreme Court. It is indeed an unprecedented crisis in the Apex Court. Thus, the heavy responsibility lies on the Chief Justice of India (CJI) N. V. Ramana and his four colleagues in the collegium-Justices U. U. Lalit, A M Khanwilkar, Dr. D. Y. Chandrachud, and L. Nageswara Rao to appoint brilliant and competent judges in the Supreme Court from diverse backgrounds on a priority basis. Given the sufficient number of vacancies and opportune time, the collegium may also consider appointing a ‘distinguished jurist’ as a judge in the Supreme Court because no appointment has yet been made from this category ever since the commencement of the Constitution. Let me throw some light on this issue of great public importance.
As per Article 124 of the Constitution, the President of India appoints the judges of the Supreme Court in consultation with the Supreme Court collegium headed by the Chief Justice of India. There are three categories of persons eligible to be appointed as judges to the Supreme Court-judges of the High Courts, practicing lawyers of the High Courts, and a ‘distinguished jurist’. Mostly, the judges of the High Courts reach the Supreme Court. Up till now, only 7 lawyers have been appointed to the Supreme Court directly. No ‘distinguished jurist’ as mentioned under Article 124(3)(c) of the Constitution has yet been appointed to the Supreme Court ever since the Constitution came into force. Sadly, the President of India has failed to identify even a single ‘distinguished jurist’ in the country during the last seven decades despite the availability of many eminent jurists. We have had several distinguished scholars and jurists in the country who could have been given opportunities to contribute to the judicial branch at the apex level. Our country is not short of brilliant professors of law who can be considered for judicial appointments in the top court given their marvelous academic contributions and recognition. But nobody thinks about this issue seriously. The Supreme Court collegium, which has the conclusive power to recommend judicial appointments to the Central Government, must ponder over this issue of great public importance.
Notably, the term ‘distinguished jurist’ is not defined in the Constitution. However, it may include all the eminent professors of law, who are engaged in high-quality teaching, and research and whose academic writings carry considerable value in judicial adjudication and public discourse. The Constituent Assembly had included this category of ‘distinguished jurists’ in the Constitution to ensure diversity in judicial appointments, keeping in view the international practice and precedents to get the benefit of the talented legal academics in the judicial adjudication. Some of the distinguished members of the Constituent Assembly such as H. V. Kamath and M. A. Ayyangar had proposed this provision to get judges from diverse backgrounds. It seems they were influenced by international precedents like the USA and some European countries like Germany where renowned law professors had been appointed judges in their Supreme Courts from time to time. Professor Felix Frankfurter was a famous teacher of law at Harvard Law School before his appointment in the U.S. Supreme Court. Over the years, the USA has continued that tradition and appointed many law professors to the Supreme Court. Justice A. M. Kennedy was also a professor of law for a long time. Justice Ruth Bader Ginsburg was also a law professor at Columbia Law School before being appointed to the New York Supreme Court and later to the U.S. Supreme Court. Professor Dieter Grimm was a law teacher at Humbolt University, Berlin before he was appointed as a judge to the Federal Constitutional Court of Germany. Recently, Professor Andrew Burrows, an eminent law professor at Oxford University, was appointed a judge in the U.K. Supreme Court. The list goes on.
Why should eminent law professors be appointed as judges in the Supreme Court? Like judges and lawyers, the law professors participate in the legal process rigorously. They teach law to students, develop legal propositions, concepts, theories, examine case laws decided by the Supreme Court and High Courts, find out loopholes in the judgments, and also suggest necessary solutions. Besides this, some law professors produce cutting-edge knowledge by publishing books and articles on significant legal issues that help the courts to decide controversies involved in the litigation. Admittedly, law professors may face difficulties in deciding ordinary civil and criminal cases because of the lack of practical experience, there is little doubt that they are eminently qualified to decide constitutional law and related cases that involve a deep understanding of theoretical jurisprudential concepts in various branches of law. As the Supreme Court decides many constitutional questions, a law professor can make a visible contribution as a judge in the Court. This is why the judge-makers should think to make an experiment by appointing a ‘distinguished jurist’ judge in the Apex Court.
To activate a dormant constitutional provision, the President of India should identify a ‘distinguished jurist’ as per Article 124(3)(c) of the Constitution. This exercise has to be done by the Central Government on whose advice the President exercises his constitutional powers and functions as mandated under Article 74 of the Constitution. Once the Central Government identifies any ‘distinguished jurist’, it will be duty-bound to share the name with the Supreme Court collegium led by the Chief Justice of India for seeking its inputs and comments. As the Supreme Court collegium has the final say in judicial appointments, no judge can be appointed to the Supreme Court unless the collegium makes a unanimous recommendation to the President of India. Thus, the collegium can play a very significant role in appointing a ‘distinguished jurist’ as a judge of the Apex Court.
In light of the above discussion, it is submitted that the time has come when both the Union Government and the Supreme Court collegium should take the necessary steps to appoint a ‘distinguished jurist’ as a judge in the Supreme Court of India to diversify the judiciary. There is no reason to deprive India of its best prospect of conversion of a professor of law into a Supreme Court Justice.
Lokendra Malik, Advocate,
Supreme Court of India
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