Time to appoint a distinguished jurist judge

Indian Constitution is 72 years old. Article 124 (3) (c) provides for appointment of a distinguished jurist as Judge, Supreme Court of India. But the Constitution is silent about who is a distinguished jurist. One of the options which the Constitution envisages for appointment to the Supreme Court is of a distinguished jurist. The Mount Everest was scaled in the year 1953. But in 72 years, no jurist has been able to reach the apex court. This does not mean that India has not produced any distinguished jurist. Who can miss the rich contributions of Professors Upendra Baxi, N.R. Madhava Menon and P.K.Tripathi?

The draft Constitution did not contain the category of a distinguished jurist. It was added through an amendment proposed by late H.V.Kamath. The choice for the Supreme Court judges was limited to the Judges of the High Courts and the lawyers of the High Courts/Supreme Court. The object of this little amendment was to open a wider field of choice for the President in the matter of appointment of judges to the Supreme Court. Kamath reasoned that the Constituent Assembly (CA) will realize that it was desirable to have men/women with outstanding legal and juristic learning. He made it clear that this amendment was based on the provision relating to the qualifications for Judges of the International Court of Justice at the Hague. In the CA Debates, a reference was made to the appointment of Felix Frankfurter, a Professor at Harvard Law School by President Roosevelt as an Associate Judge of the American Supreme Court in 1939. Frankfurter’s judgments/opinions made him one of the most respected judge of all times. M.A.Ayyangar had suggested that in the first composition of the Indian Supreme Court, out of seven judges, one must be a jurist of great reputation. But even though the strength of the Supreme Court judges has risen to 34, no jurist has so far found a berth there.

Sound academic minds are the backbone of constitutional jurisprudence. Equally, academic lawyers have richly contributed to the growth of criminal jurisprudence as also in other domains of law. The fact is that every field of law has been filtered by academic minds. The law journals nationally and internationally will bear testimony to this.

Blend academia and law

The general feeling is that academic minds are not practical minds. They are theoretical. Speaking personally, after having spent 21 years in the academic field in the best of global institutions, I switched over to the legal profession at the age of 45-46. My fields were Constitutional and Administrative Law. Each case involved the application of law to different factual canvases. Duly supported by the law laid down by the apex court and the High Courts by way of precedents, I had the added advantage of academic depth. After having been at the Bar for 10 years, I was designated as Senior Advocate by the Punjab and Haryana High Court. In 2013, after 21 years at the Bar, I was appointed Director, National Judicial Academy, India, by the Chief Justice of India I was told that I was a blend of academia and legal professional.

When I started my academic career in 1969, I was given to teach Administrative Law. Since there was no book exclusively on administrative law, I worked, wrote research papers and taught. I did my doctoral thesis on Ombudsman, and contributed research papers in national and international seminars and conferences. Administrative law has grown as a judge made law over the decades. I have enjoyed growing with a growing subject. From early 1991, I have practiced administrative law. We have matured together. The period from 1969 to 2022 belongs to administrative law. It has been a satisfying innings to have contributed to administrative law. Therefore, I was tipped for this position. After completing my term at NJA, I wanted to return to the Bar but I was asked to take over as Director (Academics), Chandigarh Judicial Academy in late 2015. I have been looking after CJA ever since. I have the satisfaction of being both, Professor Emeritus and Senior Advocate. Dr Rajeev Dhavan, Senior Advocate, was born in 1946, and had a distinguished academic career for two decades, before joining the Bar where he was designated as senior advocate at the Supreme Court in 1994. Late P.P.Rao was lecturer at the Department of Law, Delhi University from 1961 to 1967 when he joined the chamber of late N.C.Chatterjee, Senior Advocate and a Parliamentarian. Rao was designated as Senior Advocate by the Supreme Court in 1976. He made rich contribution particularly to the growth of Constitutional Jurisprudence. He was included as a jurist on the panel for selection of Lokpal.

While Article 217 (2) details the qualification for being appointed as a High Court judge, sub-clause (c) was added by the 42nd Constitutional Amendment (1976), and made provision for appointment of a distinguished jurist to the High Courts. It was deemed appropriate to add this clause so that jurists could be appointed to different High Courts. They could be picked up between the age of 45 and 50 years by which time they would have contributed to the development of jurisprudence. After 8 to 10 years as a jurist in the High Court, s/he could be considered for appointment as judge of the Supreme Court under this category. The academic experience as also experience as a judge of the High Court would prepare this jurist to play a wholesome role in the top court. Unfortunately, this addition was omitted in the 44th Amendment (1978). It doesn’t seem the Parliamentarians applied their mind while omitting it. Had the provision been used constructively, some jurists would have reached the apex court through the route of High Courts. The experience shows that if a person decides to move from the academic to the professional arena in mid to late 40s, he could look forward to a contributory role at the High Court as a jurist. It is never too late. This provision needs to be added at the High Court level. It must be given a trial, for it would enrich the constitutional jurisprudence. And gradually, we would have a jurist judge at the Supreme Court. It’s not healthy to kill a constitutional provision like this. If academic minds (even when they join the Bar late in years) can prove to be eminent senior advocates, why not good and great judges?

(The writer is former director, National Judicial Academy, India. At present, he is Director, Academics, Chandigarh Judicial Academy)