Can jurists be appointed as Supreme Court judges?

Source: The post “Can jurists be appointed as Supreme Court judges?

” has been created based on “Can jurists be appointed as Supreme Court judges?

” published in “Indian Express” on 03rd September 2026.

UPSC Syllabus: GS-2-Governance

Context: Article 124(3) of the Constitution provides three routes for qualification as a Supreme Court judge. Apart from a person who has served as a High Court judge for at least five years or practised as an advocate of a High Court for at least ten years, the President may appoint a person who, in his opinion, is a “distinguished jurist.” However, this provision has remained unused for more than 76 years.

Reason behind introduction of the provision

1. The Constituent Assembly deliberately added “distinguished jurist” as a separate category of persons eligible for appointment to the Supreme Court.
2. The objective was to widen the field of choice and bring diversity in professional backgrounds among Supreme Court judges.
3. H.V. Kamath noted that persons with “outstanding legal and juristic learning” were not necessarily confined to practising lawyers or judges.
4. The Assembly also referred to the example of Felix Frankfurter, a Harvard Law School professor for 25 years, who was appointed to the U.S. Supreme Court in 1939 by President Franklin D. Roosevelt.
5. Frankfurter later became known for the doctrine of judicial restraint, illustrating the value of distinguished legal scholars in constitutional adjudication.

Issues with the provision

1. The Constitution does not define who qualifies as a “distinguished jurist.”
2. It also does not prescribe any minimum period of professional experience for such a person.
3. This lack of objective criteria makes the provision open-ended and difficult to operationalise.
4. Nevertheless, its separate inclusion indicates that the framers contemplated a route to the Supreme Court beyond conventional judicial service and legal practice, potentially allowing eminent legal scholars and academics to enter the Court.

Reasons why it has remained unused

1. Traditional preference for judges and advocates

1. Supreme Court judges have overwhelmingly been appointed from among High Court judges.
2. Only a small number have been directly elevated from the Bar.
3. Thus, the established appointment practice has not created space for distinguished jurists.

2. Role of the Supreme Court Collegium

1. A jurist would first have to be recommended by the Supreme Court Collegium.
2. The appointment process itself therefore helps explain why the provision has remained unused.
3. The possibility of appointing legal scholar Upendra Baxi to the Supreme Court never materialised; he later described the provision as a “dead issue.”

3. Difficulty in identifying eligible jurists: Since the Constitution does not define “distinguished jurist,” there is no clear benchmark for determining who possesses the required distinction.
4. Concerns regarding practical legal experience

1. Legal academics may lack courtroom and procedural experience.
2. Under Rule 49 of the Bar Council of India Rules, an advocate taking up full-time salaried employment must cease legal practice while such employment continues.
3. Therefore, full-time law teachers may face restrictions on simultaneously practising as advocates.
4. This creates a perceived divide between “law in books” and “law in action.”

Can a distinguished jurist be appointed as a High Court judge?

1. The Constituent Assembly had also considered allowing distinguished jurists to become High Court judges.
2. In 1949, Professor Shibban Lal Saksena proposed their inclusion among persons eligible for High Court appointment, but the proposal was not accepted.
3. Nearly three decades later, the 42nd Constitutional Amendment Act, 1976, amended Article 217 and allowed a person who, in the President’s opinion, was a “distinguished jurist” to be appointed as a High Court judge.
4. This provision came into force in January 1977 but was subsequently omitted by the 44th Constitutional Amendment Act, 1978.

Way forward: The concept can be reconsidered if there is a need to bring greater professional diversity into the higher judiciary. Clearer criteria for identifying a distinguished jurist, along with consideration of legal scholarship, constitutional expertise and practical understanding of law, could make the provision more workable. The experience of the Constituent Assembly shows that the provision was intended to expand, rather than narrow, the pool of legal talent available to the Supreme Court.

Conclusion: The “distinguished jurist” provision reflects the Constitution-makers’ vision of a diverse and intellectually strong Supreme Court. Its non-use is primarily linked to the absence of a clear definition, the established preference for judges and advocates, the Collegium-based appointment process, and concerns about practical courtroom experience. Reconsidering these issues could help realise the original constitutional intention behind Article 124(3).

Question: Article 124(3) of the Indian Constitution permits the appointment of a “distinguished jurist” as a Supreme Court judge. Discuss why this provision has remained unused since its inception.

Source: The Hindu