Swapnil Shanbhag
Adv. Balasaheb Apte College of Law
Introduction:
Article 124 of the Indian Constitution deals with the establishment and the constitution of the Supreme Court of India. Clause 3 of the said article lays down the criterions for appointment of a judge to the Supreme Court. The provision being negatively worded, mandates that a person must either hold office as a High Court judge for a minimum of 5 years; or must be an advocate serving in the bar for a minimum of 10 years; or he/she must be in the opinion of the President a distinguished jurist [124(3)(c)]. The third part has been inspired from the Constitutions of USA and the UK, where academicians and law professors are regularly elevated to the Judiciary. In fact, of the nine judges serving in the Supreme Court of USA(SCOTUS), seven have been involved in academics in some part of their career. Unfortunately, in the last 70 years, no person has ever been elevated to the Supreme Court as a ‘distinguished jurist’. It is a pity, that inspite of there being several qualified academicians in the country like Prof. Upendra Bakshi, Prof. S.P. Sathe, Prof. Madhav Memon, this provision has not been invoked even once. Prof. Bakshi, famously observed, “The prospect of having our own equivalent of a Felix Frankfurter has been wilfully squandered.”[i]. This article, therefore, seeks to address this issue and argue in the favour of the appointment of ‘distinguished jurists’ as Judges of the Apex Court.
Origin:
We shall now look at how this provision was inserted into our Constitution and the reasons for the same. It is pertinent to note that the said provision was absent in the draft Constitution that was laid down before the Constituent Assembly. Article 103 of the Draft Constitution (now Art.124) provided only two criterions for appointment of judges to the Apex Court, i.e. elevation from the bench and elevation from the bar. Fortunately, Shri. H.V. Kamath moved an amendment to this draft. The amendment sought to add the words “or is a distinguished jurist” in Article 103. Shri Kamath was of the opinion that it is desirable and essential to have persons of outstanding legal and juristic learning in the judiciary, which would give a wider field choice for the President in appointing judges to the Supreme Court. Another member Shri. Ayyangar supported this amendment by offering the example of appointment of Justice Felix Frankfurter to the US Supreme Court, stating that it had proved to be an enormously successful experiment.
This amendment was adopted by the assembly. It is beyond doubt that the assembly was of the opinion that eminent persons who are possessed with outstanding legal and juristic learning must be elevated to the Supreme Court, so that their learnings of jurisprudence and expertise in the law would be useful for better delivery of justice. It is also worth noting that the Supreme Court is the considered as a Constitutional Court more than an appellate Court. It is expected that in the Supreme Court, there would be debates over the larger principles of constitutional law. It is the Supreme Court which shapes the development of the jurisprudence in the country. Hence, the existence of jurists on the bench of the top Court is very necessary.
Around the World:
- United States of America:
In the United States of America, Judges of the Supreme Court come from all walks of life as Article 3, Section 1 places absolutely no bar on the qualifications and mechanics of appointing judges. It is noteworthy that the greatest judges of the USA, did not have any judicial experience when they were appointed to the judiciary.
Justice Felix Frankfurter, well known Judge of the SCOTUS, was earlier a full-time professor at the prestigious Harvard University before being appointed as a Judge. He later went on to be known as one of the best judges the US Supreme Court has ever seen. Similar statements are echoed when Chief Justice John Marshall’s name comes up for discussion. This great man was a ‘Secretary of the State’ to President John Adams and was later appointed to the Supreme Court in 1801. He went on to become the longest serving Chief Justice of the US Supreme Court. Justice Stephen Breyer who is currently a sitting Associate Judge of the SCOTUS, was also a lecturer and professor at the Harvard University prior to being appointed as a judge.
- United Kingdom:
Even in the United Kingdom, it can be seen that members of the academia are appointed as judges on a regular basis. Former President of the Supreme Court of the UK, Baroness Lady Hale served in the academia for 18 years, before being appointed as a judge in 1994. Prof. Andrew Burrows who was quite recently sworn in as a Judge of the Supreme Court was also a professor of law at the prestigious Oxford University, before being elevated to the Judiciary.
Counter-View:
There is however a counter view as to why persons from the academic field must not be elevated to the Judiciary. The foremost argument put forth by those who oppose academicians being made Judges, is that although professors and academicians may possess enormous ‘theoretical’ knowledge about law, they lack experience in the practical side of it. One of the reasons for this is that Bar Council of India Rules and Advocates (Right to Take up Law Teaching) Rules, 1949 prevent an advocate from being a law professor as a full-time job. An amendment to the above-mentioned rules would facilitate Law Professors to practise in courts and gain the adequate practical experience required for being a judge.
Factoids:
There is an interesting factoid that needs to be glanced at when dealing with the current topic. At the outset it was pointed out that no person has ever been elevated to the Supreme Court as a ‘distinguished jurist’. This statement might however, have two unknown exceptions. The first one deals with Justice T.L. Venkatarama Iyer, who was passionate Carnatic Musician and judge of the Supreme Court. At the time of his appointment, he had served at the Madras High Court for only two years (opposed to the constitutional mandate of 5 years), and it is known that he was not elevated from the bar. Therefore, it seems that Justice T.L. Venkatarama Iyer is the first person to be elevated to the Apex Court as a ‘distinguished jurist’.
Danger of Constitutional Desuetude:
When a legal provision remains consciously unused by the political actors for a significant amount of time, it gives rise to a convention or custom against the use of such a provision. The provision is said to become obsolete and may lose its political and legal legitimacy. The application of desuetude to constitutions and moreover to the Indian Constitution is highly disputed by the Apex Court itself. However, if the provision for appointment of distinguished jurists remains unused like in the past, it may surely give rise to a political convention which may prevent the political actors from invoking the said power even if they think it fit to do so, resulting in the provision losing its political, if not legal, legitimacy. The most convenient way known to prevent a provision from going into desuetude is by regular invocation and application of it. It is important therefore, that this provision is now invoked in order to prevent it from becoming obsolete and politically illegitimate.
Conclusion:
It is evident that the Constituent Assembly was of the opinion that academicians, professors and other persons of juristic learning should also be elevated to the Supreme Court. It is however a pity that this provision is one of the unused provisions of our Constitution. The Apex Court is regularly faced with challenges regarding correct interpretation of the Constitution. It is submitted that professors can lend their expertise to the court in such matters. Further history is a witness to the fact that, academicians and professors have gone on to become some of the greatest judges the legal fraternity has ever seen.. A professor is constantly involved in researching in law, interpreting laws and analysing laws and judgements. It is also common knowledge that a professor is more likely to have more understanding of jurisprudence around the world. It is also apparent that the greatest authors of law books are all professors and academicians. A shift in the outlook of the collegium is required.
REFERENCES:
[i]https://www.deccanherald.com/opinion/in-perspective/quandry-the-present-state-of-msmes-842573.html
