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Why Has No ‘Distinguished Jurist’ Ever Been Made A SC Judge In 76 Years?
The constitutional provision enabling the appointment of distinguished jurists as Supreme Court Judges has remained unused for over 76 years.
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It is undoubtedly entirely in order and so also in the fitness of things that while taking the most commendable step in the right direction, we see that none other than the Supreme Court Judge – Hon’ble Mr Justice Ujjal Bhuyan has stepped forward and called for a very serious debate on the appointment of distinguished jurists as Judges of the Supreme Court. He has very rightly questioned that, “Why has no ‘distinguished jurist’ ever been made a Supreme Court Judge in 76 years?” This is indeed most baffling and cannot be ever justified under any circumstances as we have so many distinguished jurists in last 76 years yet not even one made ever a Supreme Court Judge!
He very rightly underscored that the constitutional provision enabling such appointments has remained unused for over 76 years! I think that it is because Centre fears that if any person other than practicing lawyers are made Supreme Court Judges then they can be more independent in decision making and take prompt action to redress the key issues that ail Indian judiciary like lack of toilets in district courts especially for women due to which women lawyers have to face so many problems and still lying unredressed. We see here that even Supreme Court women Judges never bother to ever speak on it and drag themselves into needless opinion giving on so many other issues which hardly has any impact that affects women lawyers practicing in district courts!
Needless to say, Centre also fears that if distinguished jurists are made Supreme Court Judges then they can crack the whip and take suo motu cognizance of most merciless butchering of equality as enshrined in Article 14 of Constitution and so also most atrocious favouritism and open cheating perpetrated in distribution of High Courts and High Court Benches and High Court Circuit Benches in different States and different regions with impunity by Centre which practicing lawyers who are made Supreme Court Judges never dare to take suo motu cognizance despite the clear writing on the wall! Centre fears that distinguished jurists if made Supreme Court Judges will definitely break the backbone of this most merciless discrimination that has been perpetrated in distribution of High Court Benches especially which culminated in partition of Uttar Pradesh and Madhya Pradesh 26 years ago!
If one look at the whole picture, we see that it reflects a far deeper malaise which now no more can be hidden from public gaze any longer. How long will Centre keep downplaying and stonewalling the most legitimate and compelling demand for a High Court Bench in West UP and so also in Orissa and Bihar and some other States? This is clearly a stark reminder of how much Centre discriminates most ruthlessly yet is never held accountable even by top court! Why Apex Court never takes Centre to task for it? West UP with more than 10 or 11 crore people and 30 districts which owes for majority of pending cases of Allahabad High Court for whom Justice Jaswant Singh Commission recommended maximum three High Court Benches – permanent seat of Bench in West UP at Agra and two Circuit Benches at Dehradun and Nainital yet not even one created which culminated in partition of Uttar Pradesh 26 years ago as many sacrificed their precious lives yet Apex Court never dared to take suo motu cognizance and Maharashtra which already had multiple High Court Benches at Nagpur and Panaji one more created at Auranagabad in mid 1980s as recommended for just 7 districts then and now one more at Kolhapur in Western Maharashtra for just 6 districts has started functioning from August 18, 2025! All limits have been crossed in open cheating yet not one Judge of Apex Court has ever dared to take suo motu cognizance of this “open dacoity” perpetrated right under the nose of judiciary!
How long will Supreme Court abjectly keep playing second fiddle in front of Centre and keep giving unfettered licence to most horrendously and most mercilessly discriminate and perpetrate most atrocious discrimination perpetrated in distribution of High Courts and High Court Benches and High Court Circuit Benches in different States and different regions? Not a single High Court Judge of Allahabad High Court or Patna High Court or Jodhpur High Court or Cuttack High Court or Ahmedabad High Court among others nor even any Judge of Supreme Court has ever dared to take suo motu cognizance of this most merciless butchering of equality as enshrined in Article 14 of Constitution! Biggest insane person on earth in his/her right senses will definitely never endorse what Congress and BJP have done who have ruled in Centre that just one High Court Bench for most populated State of India with maximum number of pending cases and that too so close to Allahabad High Court at Lucknow way back in July 1948 and deprived West UP from having not even a single High Court Bench not even a single High Court Circuit Bench which owes for majority of pending cases of Allahabad High Court which is all on record and has more than 10 crore people and 30 districts and so also attached litigants of 30 districts of West UP and hilly areas of undivided UP with not even Lucknow but right uptill Allahabad which culminated in partition of Uttar Pradesh 26 years ago in which so many people sacrificed their lives and yet Supreme Court never dared to take suo motu cognizance of non-implementation of Justice Jaswant Singh Commission recommendations headed by former Supreme Court Judge appointed by Centre itself which recommended maximum 3 High Court Benches for undivided UP – two High Court Circuit Benches in Dehradun and Nainital and a permanent seat of High Court Bench in West UP yet not even one created anywhere which is a national disgrace and Maharashtra which already had multiple High Court Benches at Nagpur and Panaji one more created at Aurangabad as recommended within a very short span of time in mid 1980s itself for just 7 districts then and now one more fifth High Court Bench approved for just 6 districts at Kolhapur which started functioning from August 18, 2025 without any recommendations from any Commission but in UP not a single Bench created in last 78 years and so also lawless Bihar has none and Rajasthan only one and Orissa and Gujarat none and Centre has equipped only five elite States – Maharashtra, Karnataka, West Bengal, Assam and Madhya Pradesh with multiple High Court Benches most astoundingly leaving prominent big States like UP, Rajasthan, lawless Bihar out from the elite club!
It must be definitely asked upfront: Why no Judge of Supreme Court ever dares to openly speak on it? Most bone chillingly, even the Supreme Court in last 80 years of independence has never dared to take suo motu cognizance of it and even the press which is considered the fourth pillar of Indian democracy including newspapers and news channels also maintains a conspicuous inexplicable deafening silence on it and hardly ever accords any prime coverage to it!
It must be also disclosed here that Hon’ble Mr Justice Ujjal Bhuyan was delivering the convocation address at the 13th Convocation of National Law University Delhi (NLU Delhi) for its postgraduate programmes. It would be instructive to note that Article 124(3) of the Constitution permits the appointment of a person who is, in the opinion of the President, a distinguished jurist, as a Supreme Court Judge. However, Hon’ble Mr Justice Ujjal Bhuyan pointed out that no jurist has been appointed to the Supreme Court under this provision so far. This is a very sad commentary on the pathetic existing state of affairs which needs to be addressed right now!
Hon’ble Mr Justice Ujjal Bhuyan suggested two possible reasons for this. He said while laying bare his pragmatic view that, “The first is that earlier, when the collegium system was not there, in the view of the Central Government, and thereafter, when the collegium system came into being, in the view of the collegiums, there is not enough depth in Indian academia to be seriously considered for elevation as a Judge of the Supreme Court.” He then offered what he considered the more probable explanation. He pointed out that, “The second, which is more probable, is that both the Central Government and the collegium have not seriously explored this provision thus far.”
We need to note that the Judge traced the provision to the Constituent Assembly Debates and recalled that HV Kamath had proposed expanding the pool of eligible candidates beyond Judges and Advocates to include distinguished jurists. While moving the amendment on May 24, 1949 Constituent Assembly member HV Kamath said it sought to open a wider field of choice for Supreme Court appointments. He pointed out sagaciously that persons with “outstanding legal and juristic learning” were “not necessarily confined to judges or advocates”, pointing to the selection of Judges of the International Court of Justice on similar terms.
It also needs to be taken into account that the Constituent Assembly debates also referred to the appointments of eminent Felix Frankfurter who had been a Professor at Harvard Law School for 25 years as an Associate Justice to the USA Supreme Court in 1939 by US President Franklin D Roosevelt. It also merits noting that Justice Frankfurter notably became biggest proponent of the doctrine of judicial restraint which envisages the principle that courts should always respect and maintain the domain of the elected legislature and the executive and exercise restraint in interfering with their decisions. Even Assembly Speaker M Ananthasayanam Ayyangar while applauding the appointment of Justice Frankfurter’s as a “novel experiment” that had worked well opined categorically that legal expertise was not confined to practicing lawyers or judges.
The proposal was ultimately accepted by the Constituent Assembly. Hon’ble Mr Justice Bhuyan said that, “The Constituent Assembly evidently felt it important to have legal academics and professors as Judges of the Supreme Court of India.” Why then not a single jurist appointed as a Judge of Supreme Court of India in last 80 years of independence is a most telling commentary on the manner in which the wishes of the Constituent Assembly have been disregarded with impunity?
Very few know that the Constituent Assembly had also considered seriously the option of permitting “distinguished jurists” to be appointed as High Court Judges. In this context, it deserves mentioning that on June 7, 1949, Professor Shibban Lal Saksena moved an amendment proposing their inclusion also among those eligible to be considered for appointment as a High Court Judge. But the proposal was not accepted.
But the story does not end here only! It was by the 42nd Amendment Constitution Act, 1976 which amended Article 217and permitted a person who in the opinion of the President is a “distinguished jurist” to be appointed to a High Court. The provision even came into effect in January 1977 but was ultimately omitted by the Constitution 44th Amendment Act, 1978.
What also cannot be lost sight of is that Hon’ble Mr Justice Ujjal Bhuyan rejected the specious argument that academics should not be appointed as Judges because they lack practical experience. He termed it a “shallow objection”. He pointed out most elegantly that, “A distinguished jurist can be a great value addition to the Bench. By his or her scholarship, he or she can make a visible contribution to the decision-making process at the top level.”
It would be worthwhile to note that while addressing the students at convocation of LLM students of National Law University in Delhi, he also plainly said that, “No legal academic has yet been appointed as a Judge of Supreme Court despite there being brilliant minds who could have made a substantial contribution had they become part of the Bench.” While most brilliantly addressing the ‘lack of practical experience’ argument against elevation of jurists as Judges, he said in simple and straightforward language that, “SC is not only the highest adjudicatory body but it is the moral, legal and constitutional conscience keeper of the nation. It is above technicalities.” He further hastened to add stating explicitly that, “The objective behind the appointment of a ‘distinguished jurist’ as a SC judge is to diversify as they “can be a great value addition to the bench. By his or her scholarship, he or she can make a visible contribution to the decision making process at the top level. Participation of renowned legal academia and scholars would have a defining impact on the judicial functioning of Supreme Court.”
It is also worth noting that Hon’ble Mr Justice Ujjal Bhuyan also referred to eminent Constitutional scholar DD Basu’s most enlightening view that bringing academic jurists of the right calibre into the highest court would enrich it. He also lamented pointing out that, “It is regrettable that this provision has remained one of our Constitution’s unused mandates.” He also went on to ably cite the appointment of academics to constitutional courts in jurisdictions including the United States of America, United Kingdom, Canada and Kenya. He concluded that the issue deserves renewed consideration. He underscored seriously pointing out emphatically that, “This is an issue I think the academia needs to debate and put it back into the public domain once again.” Very rightly so!
It may be recalled that eminent legal luminary and distinguished jurist Upendra Baxi possible appointment to the Apex Court never fructified even though it was considered seriously had just no hesitation in describing the provision as a “dead issue” in a 2015 interview that he had with eminent legal website LiveLaw. I most seriously consider Faizan Mustafa who is an eminent academician and legal scholar who needs no introduction. He is former Vice Chancellor of NALSAR University of Law, Hyderabad and founding VC of National Law University, Odisha and most recently was also Vice Chancellor of Chanakya National Law University at Patna. He writes for so many national newspapers and even in various judgments his scholarly views quoted by even Apex Court several times! Still most unfortunately we don’t see him sitting in Supreme Court as a Judge!
At the cost of repetition, I would say that Hon’ble Mr Justice Ujjal Bhuyan also pointed out that legal academia are routinely appointed as Judges to the Constitutional Courts in US, UK, Canada and Kenya which cannot be just glossed over! He also pointed out most sagaciously that, “In America, legal academia can practice as long as it does not interfere with academic sessions but Rule 49 of Bar Council of India opposes this”! This definitely needs to be changed in India also as has been suggested by him.
For the exclusive benefit of my esteemed readers, I must point out here that under Rule 49 of the Bar Council of India Rules, an advocate who takes up full-time salaried employment must cease to practice while such employment continues. It also cannot be glossed over or undermined that in 2019, the Consortium of National Law Universities had most passionately sought a relaxation of this restriction to allow full-time faculty to practice in courts and bridge the divide between “law in books” and “law in action” but no action forthcoming by Centre on this count till date! I would in addition also humbly suggest that such legal luminaries like Upendra Baxi and Faizan Mustafa who have never been Supreme Court Judges need to be also seriously considered even for appointment as Judges of International Court of Justice because of their huge expertise!
It must also be informed and recollected here that in the US, Felix Frankfurter became the first jurist to be a Supreme Court Judge who was picked by Theodore Roosevelt in 1939. Thereafter several legal academia have been appointed as US Supreme Court Judges, many of whom had prior teaching experience before they were appointed as Judges! Why can’t this be initiated in India also?
In conclusion, it must be said explicitly that there is a lot of merit in what Hon’ble Mr Justice Ujjal Bhuyan has pointed out so elegantly, eloquently, explicitly, eruditely and to top it all effectively. There is no bona fide reason as to why this need not be given a serious food of thought and debated, deliberated and discussed threadbare. It thus merits no reiteration that this most burning issue definitely can no longer be afforded to be put in the backburner any longer now and needs to be addressed at the earliest! It definitely brooks no more delay any longer now!
Disclaimer:The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of The Rift.
*Supreme CourtCollegium SystemConstitutional LawDistinguished JuristJudicial AppointmentsJustice Ujjal Bhuyan
