Can jurists be appointed as Supreme Court judges?, Pg8

Key Highlights:

• Supreme Court Justice Ujjal Bhuyan recently questioned why the constitutional provision allowing a “distinguished jurist” to be appointed as a judge of the Supreme Court has remained unused for over 76 years.
• Article 124(3) of the Constitution permits the appointment of a person who, in the President’s opinion, is a “distinguished jurist” as a Supreme Court judge.
• This provision was intended by the Constituent Assembly to diversify the professional backgrounds of judges on the Supreme Court Bench.
• Despite this, no legal academic or distinguished jurist has been elevated to the Supreme Court under this specific category since the Constitution's inception.

Detailed Insights:

• Article 124(3) outlines three pathways for appointment to the Supreme Court: five years as a High Court judge, ten years as a High Court advocate, or being a "distinguished jurist" in the President's opinion.
• The term "distinguished jurist" is not explicitly defined in the Constitution, leaving its interpretation open.
• During the Constituent Assembly debates, members like H.V. Kamath advocated for this provision to broaden the pool of candidates beyond judges and advocates.
• The appointment of Felix Frankfurter, a Harvard Law professor, to the U.S. Supreme Court was cited as an example during these debates to support the inclusion of jurists.
• A similar provision for High Court judges was briefly introduced by the Constitution (Forty-second Amendment) Act, 1976, but was subsequently removed by the Constitution (Forty-fourth Amendment) Act, 1978.
• The non-utilization of this provision is partly attributed to the current appointment process, where recommendations originate from the Supreme Court Collegium.
• Another factor is Rule 49 of the Bar Council of India Rules, which restricts full-time salaried legal academics from practicing as advocates, potentially limiting their engagement with courtroom procedures.

Key Concepts Involved:

• Article 124(3): A constitutional provision outlining eligibility criteria for appointment as a judge of the Supreme Court of India.
• Distinguished Jurist: A person of exceptional legal scholarship, academic repute, or expertise in legal theory, eligible for Supreme Court appointment.
• Supreme Court Collegium: A system where the Chief Justice of India and the four senior-most judges of the Supreme Court recommend appointments and transfers of judges.
• Constitution (Forty-second Amendment) Act, 1976: A significant amendment during the Emergency that introduced several changes, including a temporary provision for distinguished jurists in High Courts.
• Constitution (Forty-fourth Amendment) Act, 1978: An amendment that largely reversed changes made by the 42nd Amendment, including the removal of the distinguished jurist provision for High Courts.
• Rule 49 of the Bar Council of India Rules: A regulation that prohibits advocates from engaging in full-time salaried employment while continuing to practice law.