By Lokendra Malik
With Justice Navin Sinha’s retirement recently, the Supreme Court is short of ten judges. However, the collegium-led by Chief Justice of India (CJI) NV Ramana has recommended the names of nine persons—eight judges and one Supreme Court senior lawyer—for appointing as judges in the apex court.
If the centre implements the collegium’s recommendations, the Court will have 33 judges soon, out of 34, the total sanctioned strength. The Court was facing an unprecedented crisis of vacancies and the CJI has done the needful. The CJI and his four collegium colleagues—Justices UU Lalit, AM Khanwilkar, Dr DY Chandrachud and L Nageswara Rao—deserve appreciation for their collective efforts to end the deadlock in the collegium. The collegium has recommended the names of brilliant and competent persons who will enhance the prestige and glory of the Court.
Had the collegium also taken a view about the appointment of a “distinguished jurist” as a judge in the Supreme Court, it would have been a great tribute to the Indian legal academia because no appointment has yet been made from the category of “distinguished jurists” since the inauguration of the Court.
As per Article 124 of the Constitution, the President of India appoints judges of the Supreme Court in consultation with the collegium headed by the CJI. The collegium’s recommendations are binding on the President. Three categories of persons are eligible to be appointed as judges here—judges of High Courts, practicing lawyers of High Courts and a “distinguished jurist”. Mostly, it is judges of High Courts who reach the Supreme Court. Until now, only seven lawyers have been appointed to the Supreme Court directly, but no “distinguished jurist” has been appointed so far.
Sadly, the President has failed to identify even a single “distinguished jurist” during the last seven decades despite the availability of many. We have had several distinguished scholars and jurists in the country who could have been given opportunities to contribute to the judicial branch at the apex level. It is said that Professor PK Tripathi’s name was considered once.
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Professor Upendra Baxi appreciates Professor Tripathi in these words:
“Justice Tripathi would have provided a heroic model for judicial self-restraint, like Justice Frankfurter. Like him, Justice Tripathi would have asserted that judges may not watch election returns in reaching their decisions. Like Frankfurter, Tripathi on the high bench would have, at the same time, constituted workable boundaries against judicial activism as well as judicial abdication. Like Frankfurter, he would have been discerning concerning creative uses of judicial role and power, held within articulate bounds of judicial self-discipline. Equally, Tripathi would have imparted elegance to the appellate judicial prose…. His non-elevation exemplifies India’s constitutional misfortune, by now the custom of the Indian Constitution that says, contrary to its original intention, that no jurist may ever be elevated to the Supreme Court. Indian citizens thus remain unaccountably deprived of the potential judicial contribution of Indian jurists.”
Our country is not short of brilliant professors of law who can be considered for judicial appointments in the top court, given their academic contributions and recognition. But nobody thinks about this issue seriously. The Supreme Court collegium, which has the conclusive power to recommend judicial appointments to the central government, must ponder over this issue.
Notably, the term “distinguished jurist” is not defined in the Constitution. However, it may include all eminent professors of law who are engaged in high-quality teaching and research and whose academic writings carry considerable value in judicial adjudication and public discourse. The Constituent Assembly had included this category of “distinguished jurists” in the Constitution to ensure diversity in judicial appointments, keeping in view the international practice and precedents.
Some of the distinguished members of the Constituent Assembly such as HV Kamath and MA Ayyangar had proposed this provision to get judges from diverse backgrounds. On May 24, 1949, Ayyangar had endorsed this idea in these words: “In various cases, a Supreme Court has to deal with constitutional issues. A practicing lawyer barely comes across constitutional problems. A person may enter the profession of Law straightaway. He might be a member of a Law College or be a Dean of the Faculty of Law in a University. There are many eminent persons, there are many writers, there are jurists of great eminence. Why should it not be made possible for the President to appoint a jurist of distinction if it is necessary?
As a matter of fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation…. Therefore, Sir, I am in agreement with the proposal to add a jurist also, a distinguished jurist, in the categories for the choice of a judge of the Supreme Court.”
Ayyangar was deeply influenced by international precedents in the US and some European countries like Germany where renowned law professors were appointed judges in their Supreme Courts from time to time. Professor Felix Frankfurter was a famous teacher of law at Harvard Law School before his appointment in the US Supreme Court. This tradition has continued in the US. Justice AM Kennedy was also a professor of law for a long time. Justice Ruth Bader Ginsburg was also a law professor at Columbia Law School before being appointed to the New York Supreme Court and later to the US Supreme Court. Justice Elena Kagan also taught law for many years at Chicago Law School and Harvard Law School. Professor Dieter Grimm was a law teacher at Humbolt University, Berlin, before he was appointed judge to the Federal Constitutional Court of Germany. Recently, Professor Andrew Burrows, an eminent law professor at Oxford University, was appointed a judge in the UK Supreme Court. The list goes on.
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Why should eminent law professors be appointed as judges in the Supreme Court? Like judges and lawyers, law professors contribute to the legal process rigorously. They teach law to students, develop legal propositions, concepts, theories, examine case laws decided by the Supreme Court and High Courts, find out loopholes in the judgments and suggest necessary solutions.
Besides this, some law professors produce cutting-edge knowledge by publishing books and articles on significant legal issues that help courts decide controversies involved in the litigation. Admittedly, law professors may face difficulties in deciding ordinary civil and criminal cases because of the lack of practical experience. But they can eminently decide constitutional law and related cases that involve a deep understanding of theoretical jurisprudential concepts in various branches of law. There are many brilliant law professors in the country who can be considered for judicial assignments in the top court. As the Supreme Court decides many constitutional questions, a law professor can make a visible contribution as a judge in the Court.
Appointing a distinguished jurist to the apex court must not be delayed further. The President needs to identify him or her as per Article 124(3)(c) of the Constitution. This exercise has to be done by the Central Government on whose advice the President exercises all his constitutional powers and functions as mandated under Article 74 of the Constitution.
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Once the government identifies a “distinguished jurist”, it will have to share the name with the Supreme Court collegium for seeking its inputs and comments. As the collegium has the final say in judicial appointments, no judge can be appointed to the Supreme Court unless the collegium makes a unanimous recommendation to the President. Hopefully, the collegium is likely to have a positive view about this kind of proposal.
Given the above discussion, it is submitted that a dormant constitutional provision must be activated to fulfil the wishes of our great Founding Fathers. As Professor Baxi said: “…the constitutional provision, which enables the elevation of a jurist to the Supreme Court of India has been consistently ignored. This has deprived India of its prospect of conversion of a law professor into a Justice. The prospect of having our own equivalent of a Felix Frankfurter has been willfully ignored.”
—The writer is Advocate, Supreme Court of India