It is surprising that all these 65 years, successive governments at the Centre have not used a very important provision of the Constitution and ignored a stream of persons though eligible to be judges of Supreme Court. Article 124 (3) of the Constitution deals with three kinds of eligible persons who can be appointed judges of the Supreme Court. Article 124(3), Sub-clauses (a) and (b) say Judges of High Court in service and practising advocates can be elevated to the Bench of the apex court, and sub-clause (c) says a distinguished jurist, in the opinion of the President, can be appointed as Judge. When I wrote and told Prime Minister Mr Narendra Modi recently in his office at the Lok Sabha, he said there are many distinguished professors of law in this country, some of who could have been chosen as judges of Supreme Court and positively responded to consider this proposal. At least, a considerable number of judges should be selected from this unexplored stream of legal academicians to bring a qualitative change in the judicial process.
Who is a distinguished jurist?
The expression “distinguished jurist” in this Article means law professors: or those who contributed in expansion of the existing frontiers of legal knowledge by their research and teaching.
As the apex court has to deal both with appellate and original disputes with substantial questions of law, it is bound to develop new legal principles and jurisprudence by interpreting the Constitution and other statutes. Legal academicians with good track record of research and writing can develop necessary concepts and script judgments on par with experts on Bench and Bar.
Almost every state today has a National Law School which are striving to improve the quality of legal education sending hundreds of graduates every year into research, practice and academia. While first national law school came in Bangalore in 1986, National Academy of Legal Studies and Research (NALSAR) at Hyderabad and similar schools at other places came up after 1998. New generation of lawyers are coming up since then, getting educated at reputed international law schools. Most of them are spread over High Courts and the Supreme Court while some of them are pursuing academics after specialization and research. Most industrious and innovative of them could get a chance to enrich the Bench if Article 124(3)(c) is put to use.
Participating in debates on drafting of the Constitution on May 24, 1949, Mr. H.V. Kamath, member of the Constituent Assembly, proposed the “distinguished jurist” category of judges and said: “The object of this little amendment of mine is to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court... I am sure that the House will realize that it is desirable, may [be] it is essential, to have men - or for the matter of that, women - who are possessed of outstanding legal and juristic learning. In my humble judgment, such are not necessarily confined to Judges or Advocates. Incidentally, I may mention that this amendment of mine is based on the provision relating to the qualifications for Judges of the International Court of Justice at The Hague.” The Constituent Assembly adopted it and Article 124 (3)(c) is incorporated.
Mr. Kamath referred to the US example where President Roosevelt appointed Felix Frankfurter, a Professor at Harvard Law School for 25 years, as an Associate Judge of the American Supreme Court in 1939. Today Justice Frankfurter has a reputation of being one of the most celebrated judges of the Federal Supreme Court. Later in 1988, Justice A.M. Kennedy was a Professor of Constitutional law for 23 years before President Reagan made him a judge. Another professor who taught Law for 17 years in Columbia, R.B. Ginsburg was also appointed Judge of the US Supreme Court.
In High Courts
Same necessity of legal academicians is there for the High Courts of states also. Hence, there should be a similar provision in the relevant Article 217(2) of the Constitution, which was omitted by the makers of the Constitution. In fact, by 42nd Amendment to the Constitution, sub-clause (c) was included in Article 217(2) in 1976. Because several provisions subverting the basic structure of the Constitution were there in the 42nd Amendment Act, it was totally reversed by 44th Amendment in 1978 to restore the original structure of the Constitution. In the process, a required provision in Article 217 (2) was also removed. There is a need to insert clause (c) at the end of Article 217(2) after clause (b): “(c) is, in the opinion of President, a distinguished jurist”. If eminent jurists are appointed at both Supreme Court and High Courts of different states, a new blood would enter the judiciary and if necessary researchers are provided to all judges, besides periodical training, it would be a worthy addition to our innovative judiciary in transforming democracy of India.
(The author is an Advocate & Member of Lok Sabha from Karimnagar, Telangana. He can be reached at firstname.lastname@example.org)