Who is a ‘distinguished jurist’, and why has India never appointed one to the Supreme Court?

More than 76 years after the Constitution came into force, Article 124(3)’s provision allowing appointment of a “distinguished jurist” directly to the Supreme Court has never been used.

Constitutional Provision — Article 124(3)

• Article 124(3) provides three routes for appointment as a Supreme Court judge.
• A person must be an Indian citizen and have served as a High Court judge for at least five years, practised as a High Court advocate for at least ten years, or be considered by the President to be a “distinguished jurist”.
• In practice, most Supreme Court judges are elevated from High Courts, while a smaller number are appointed directly from the Bar.
• The distinguished jurist route has never been exercised.

High Court Position

• Article 217 governs appointment of High Court judges.
• The 42nd Constitutional Amendment Act, 1976 introduced a similar distinguished-jurist route for High Courts.
• This provision was removed by the 44th Constitutional Amendment Act, 1978.

Why Was the Jurist Route Included?

• During the Constituent Assembly debate of May 24, 1949, H.V. Kamath argued that the Supreme Court should also draw from persons possessing outstanding legal and juristic learning, even without courtroom practice.
• Kamath cited the International Court of Justice as an example of a court benefiting from wider legal expertise.
• M. Ananthasayanam Ayyangar argued that constitutional courts require specialised knowledge that practising lawyers may not necessarily acquire through litigation alone.
• B.R. Ambedkar did not oppose the principle, though he raised questions regarding the terminology used.

Who is a “Distinguished Jurist”?

• The Constitution does not define the expression “distinguished jurist”.
• It can broadly include persons with exceptional expertise in legal scholarship, teaching, research, jurisprudence or specialised areas of law.
• Eminent legal academics may qualify even without extensive courtroom experience.
• However, Bar Council rules generally prevent full-time law teachers from simultaneously practising law, creating a gap between academic distinction and conventional judicial eligibility.

Why Has the Provision Never Been Used?

• Successive governments and judicial institutions may have perceived a lack of sufficiently distinguished candidates from academia.
• Another possibility is that the provision has simply never been seriously explored.
• Under the contemporary collegium system, Supreme Court appointments are effectively initiated by the Supreme Court Collegium, despite Article 124(3) referring to the President’s opinion.
• Therefore, a distinguished jurist would ordinarily need to be identified and recommended by the collegium before appointment.

Why Revive the Provision?

• It could diversify the composition of the Supreme Court Bench beyond career judges and practising lawyers.
• It could bring stronger expertise in constitutional law, public law and jurisprudence.
• Academic perspectives may enrich judicial reasoning and reduce excessive dependence on narrow procedural or technical approaches.
• Distinguished jurists could strengthen the Court’s capacity to address increasingly complex constitutional, institutional and socio-legal questions.
• The provision can serve as a constitutional mechanism for introducing specialised legal knowledge into the apex court.

Institutional Challenges

• There is no clear or accepted standard for determining who qualifies as a distinguished jurist.
• Uncertainty remains over who should identify candidates and what selection criteria should apply.
• Any mechanism must safeguard merit, transparency and judicial independence.
• The dominance of the collegium system makes implementation of this constitutional route institutionally complex.
• The reported consideration of legal scholar Upendra Baxi for judicial elevation illustrates how the distinguished-jurist provision has remained largely theoretical.