The judiciary and the executive are ignoring the constitutional mandate to appoint distinguished jurists to the Supreme Court

‘The government proposes to come up with a Bill for the appointment of judges to the higher judiciary replacing the current collegium system. The judiciary evolved the collegium system in the 1990s replacing the previous system where the executive had a predominant voice in the appointment of judges. Under the collegium system, the judiciary has complete control over the appointment of judges. The political executive is of the view that the collegium system hasn’t worked well; hence a Judicial Appointment Commission, in which the executive will have a say in the appointment of judges, is necessary to achieve the objective of appointing the best people as judges in a transparent fashion. Arguably, the government’s intervention in the appointment of judges strikes at the root of independence of judiciary.’

While “who” should appoint judges can be debated endlessly, the need is to broaden the debate on the appointment of judges by focusing on other relevant issues like having jurists as judges of the Supreme Court. There has never been much debate on this issue.

Three categories

Article 124 (3) of the Constitution, broadly, provides for three categories of persons who are “eligible” to be appointed to the Supreme Court — a High Court judge with five years experience; an advocate in the High Court with 10 years experience; a “distinguished jurist.” The first two self-explanatory categories, though different, have a high degree of commonality. It comprises people who work in courts and are involved in litigation either as judges or as lawyers. However, the third category is not defined in the Constitution. Nonetheless, one can safely conclude that a “distinguished jurist” means a category of individuals different from judges and practising lawyers because these two categories find separate mention. A “distinguished jurist” refers to academic lawyers or law professors: people who have challenged and expanded the existing frontiers of legal knowledge through cutting edge research and teaching.

The “distinguished jurist” category was added to the list of “eligible” candidates for appointment to the Supreme Court in the draft Constitution. This was done in order to have diversity in professional backgrounds among individuals sitting on the bench of the Apex Court. The late H.V. Kamath, member of the Constituent Assembly, while proposing the “distinguished jurist” category, said, on May 24, 1949: “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.” Kamath’s amendment was adopted by the Constituent Assembly.

Will raise the bar

It is important to understand the significance of having law professors on the bench of India’s apex court. The Supreme Court is a court of appellate jurisdiction that has to decide on substantial questions of law. It also acts as a court of original jurisdiction in certain cases. Further, the law declared by the Supreme Court is the law of the land. Consequently, the Supreme Court is constitutionally bound to develop new legal principles and jurisprudence by interpreting the Constitution and other statutes.

This requires a certain ability to theorise and conceptualise. Law professors are academically trained to theorise and conceptualise. Industrious law professors improve upon this training, through years of painstaking research and teaching in their specialised domains, often employing empirical and interdisciplinary tools. These well developed and nuanced theorising and conceptualising abilities have the potential of raising the bar of legal reasoning up by several notches.

Regrettably, 63 long years after the Constitution was adopted, both the judiciary and the executive have consistently ignored this clear constitutional mandate. In the history of the Indian Republic, never ever has a “distinguished jurist,” i.e. a law professor, been appointed as a judge of the Supreme Court, although India has produced some outstanding law professors worthy of the “distinguished jurist” tag. In last 63 years, all appointments to the Court have been made from the first “eligible” category i.e. High Court judges, barring four instances, where practising lawyers (the second category) were directly appointed as Supreme Court judges.

The U.S. leads

Compare this with the U.S. Supreme Court where many law professors have been appointed as judges. Comparison with the U.S. is in order because the Constituent Assembly debates referred to the American 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. Justice Frankfurter went on to become one of the most celebrated judges of the American Supreme Court and a noted advocate of “judicial restraint” — something, which our constitutional polity desperately needs. Even among the current judges of the American Supreme Court, Justice A.M. Kennedy, before being nominated to the Supreme Court by President Reagan in 1988, was a Professor of Constitutional law for 23 years. Similarly, Justice R.B. Ginsburg, another current Associate Judge of the U.S. Supreme Court, taught for 17 years including at the Columbia Law School before becoming a judge.

Notwithstanding who appoints judges to the higher judiciary, the debate should also be, inter alia, on expanding the catchment area to all the three categories given in Article 124 (3). This expansion in the catchment area will throw up an Indian Frankfurter, which our Republic so rightly deserves and which, as [legal scholar] Upendra Baxi puts it, “has been wilfully squandered.”

(Prabhash Ranjan is Associate Professor of Law at National Law University, Jodhpur.)

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