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's 76-Year Failure to Appoint Distinguished Jurists Flagged by Justice Bhuyan
In a sharp and pointed address at the convocation for LLM programmes, judge Justice Ujjal Bhuyan lamented that despite providing for the appointment of distinguished jurists to the , not a single has ever been elevated to the in 76 years. The judge called this a “regrettable” omission and urged both the and the government to seriously explore this constitutional mandate.
Justice Bhuyan’s remarks come at a time when the composition of the bench is under increasing scrutiny, and debates about , representation, and expertise are gaining traction. His speech has reignited discussions on the potential role of legal academia in India’s highest court—a role envisioned by the framers of but never realised.
The Unused Provision: Article 124(3)
stipulates that a person may be appointed as a judge of the if they are a citizen of India and have either been a judge of a for at least five years, been an advocate of a for at least ten years, or are, in the opinion of the President, a “”. It is this third category that Justice Bhuyan highlighted as having been completely ignored since came into force in .
Speaking at the convocation, Justice Bhuyan noted that the founding fathers of the Republic had envisioned distinguished jurists as judges of the . He said, “While our constitution has a provision for appointment of a jurist as a judge, no jurist had been appointed so far to the so far though has completed more than 76 years.” He described the failure to utilise this provision as one of the “” of .
Why Has the Provision Remained a Dead Letter?
Justice Bhuyan offered two possible explanations for this omission. The first is that both the —before the system—and the thereafter have believed that Indian academia does not possess sufficient depth to warrant serious consideration for elevation. The second, which he deemed more probable, is that neither the government nor the has ever seriously explored the provision.
“There can be two reasons for this. The first is that earlier, when the system was not there, in the view of the , and thereafter, when the system came into being, in the view of the , there is not enough depth in the Indian academia to be seriously considered for elevation as a judge of the . The second, which is more probable, is that both the and the have not seriously explored this provision thus far,” the judge observed.
He added that while the general practice has been to appoint a senior judge or Chief Justice, and sometimes have proven “excellent”, no has yet been appointed. “No has yet been appointed as a judge of the , despite there being brilliant minds who could have made a substantial contribution had they become part of the Bench,” he said.
Defining ‘’
Justice Bhuyan also addressed the meaning of the term “”, which is not defined in . He argued that it should encompass all eminent persons involved in the practice, teaching, and research of law. “It is not necessary for a person to practise law before a court to be acknowledged as a ,” he opined.
He further clarified that while lawyers and judges can be characterised as jurists, in the context of Article 124(3), the term must extend beyond those two categories. “A person who is skilled in law or knowledgeable in the field of law would be qualified to be termed as a jurist,” the judge said.
He rejected as “shallow” the argument that jurists lack practical experience and therefore cannot serve effectively on the . “ is not only the highest adjudicatory body, but it is the of the nation. It is above technicalities. The reason for having this provision of is to diversify the Bench with talented judges. It was believed that with their academic scholarship, such category of would not remain constricted by narrow technicalities, thereby being in a stronger position to deal with ,” Justice Bhuyan explained.
A Comparative Perspective: Global Precedents
Justice Bhuyan drew on international examples to bolster his argument. He noted that does not even require a formal law degree for someone to be nominated as a judge of a federal court. He pointed to figures like Felix Frankfurter, an Austrian-born law professor at Harvard, Samuel Miller, a physician, and Ruth Bader Ginsburg, all of whom were nominated to the . In the United States, even a full-time professor can practice law as long as it does not affect academic sessions, unlike in India where rules impede academicians from practising.
The judge also highlighted that in Great Britain, Canada, and Kenya, legal academicians can be appointed to the top courts. These examples demonstrate that bringing academic expertise to the highest bench is not only feasible but has been practised successfully elsewhere.
Implications for Legal Practice and the Judiciary
Justice Bhuyan’s comments have significant implications for the Indian legal community. If the provision were to be activated, it could dramatically alter the composition of the . Legal academics bring deep theoretical knowledge, rigorous analytical skills, and a long-term view of legal development. Their presence could enrich constitutional interpretation, particularly in areas like public law, where technicalities often give way to broader principles.
Moreover, such appointments would send a strong signal about the value of legal scholarship in India. Currently, the legal profession in India largely treats academia as a separate sphere, with limited crossover to the bench. The rules that restrict practising lawyers from teaching full-time and vice versa have created a structural barrier. Justice Bhuyan’s remarks may prompt a re-examination of these rules and encourage a more integrated legal ecosystem.
For law students and aspiring legal academics, the recognition that a career in teaching can lead to the highest judicial office could inspire greater interest in research and scholarship. It might also help bridge the often-cited gap between theory and practice in Indian law.
The Road Ahead: Will the Listen?
Whether Justice Bhuyan’s observations will lead to concrete action remains uncertain. The system, which itself has been criticised for lack of transparency and diversity, has rarely considered non-traditional candidates. However, the judge’s remarks may nudge the and the government to at least discuss the possibility.
In recent years, there have been growing calls for greater representation of women, marginalised communities, and specialists in fields like environmental law and tax law on the . Adding academics to the list would be another step towards a more diverse bench.
Justice Bhuyan concluded his address by reiterating the regret that this constitutional provision remains unused. “A can be a great . 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 the ,” he said.
As the legal community digests these remarks, the spotlight now turns to the and the government to see if they will, at last, look beyond the traditional pool of candidates and embrace the vision of the framers. For now, Justice Bhuyan has placed a powerful marker—one that challenges the status quo and invites a deeper conversation on what it means to be a judge in India’s highest court.
