Article 124(3) Explained: Why India Has Never Appointed a ‘Distinguished Jurist’ to the Supreme Court

• Immediate context: Justice Ujjal Bhuyan raised the issue while addressing the postgraduate convocation of National Law University Delhi. He noted that although the Constitution has permitted appointment of distinguished jurists to the Supreme Court for more than seven decades, no such appointment has ever been made.

• Unused constitutional route: He characterised Article 124(3)(c) as an unused constitutional mandate deserving serious attention.

• Two possible explanations: Justice Bhuyan suggested that either those responsible for appointments had concluded that Indian legal academia lacked sufficient depth for such elevation, or—more plausibly in his view—the Central government earlier and the collegium later had simply never seriously explored the provision.

• His argument: Legal scholarship can offer a different type of expertise from day-to-day litigation. Academics who have spent decades studying constitutional theory, comparative law, jurisprudence, international law or specialised areas may bring additional intellectual perspectives to a constitutional court.

• The speech does not create a new legal rule. It has reopened debate over an existing constitutional option.

• Supreme Court framework: Article 124 establishes the Supreme Court and lays down important provisions concerning its judges.

• Article 124 covers, among other matters: appointment of Supreme Court judges;

eligibility; tenure; resignation; removal; and certain conditions associated with judicial office.

• Appointment: Article 124(2) provides for appointment by the President through a warrant under his hand and seal. The modern appointment procedure must be understood together with Supreme Court judgments establishing the Collegium system.

• Retirement: A Supreme Court judge ordinarily holds office until attaining 65 years of age.

• Thus, Article 124(3)(c) does not create a different category of Supreme Court judge. It creates only a different eligibility pathway into the same constitutional office.

• Under Article 124(3), a person must first be a citizen of India and then satisfy any one of three alternative requirements.

• High Court judge route: The person must have served for at least five years as a judge of one High Court or two or more High Courts in succession.

• Advocate route: The person must have practised for at least ten years as an advocate of one High Court or two or more High Courts in succession.

• Jurist route: The person must be, in the opinion of the President, a distinguished jurist.

• The word “or” is crucial: these are alternatives.

• A distinguished jurist therefore need not independently satisfy the five-year judicial-service condition or ten-year advocacy condition.

• This is precisely what gives the provision its significance.

• No express numerical requirement: Unlike the judge and advocate routes, Article 124(3)(c) does not prescribe five, ten or any other number of years.

• It also does not specify: minimum age;

academic degree; professorial rank; number of publications; years of teaching; courtroom experience; or a particular field of legal expertise.

• Constitutional flexibility: This appears to have been intentional. The category was meant to widen the available talent pool instead of reproducing the eligibility requirements applicable to judges and advocates.

• Governance challenge: The same flexibility creates uncertainty. Without objective criteria, questions arise over who qualifies as sufficiently “distinguished” and who should judge that distinction.

• That is one reason any future use of the provision would benefit from transparent institutional criteria.

• No constitutional definition: The Constitution deliberately leaves the expression open-ended.

• Justice Bhuyan observed that a jurist need not necessarily be a courtroom practitioner. Someone deeply skilled or knowledgeable in law can possess juristic distinction even without satisfying conventional litigation requirements.

• Possible candidates could therefore include exceptional: constitutional-law scholars;

professors of law; legal researchers; authors of major juristic works; comparative-law experts; international-law scholars; former legal academics holding major public-law positions; or persons possessing recognised expertise across several branches of law.

• Important caution: Merely being a professor or possessing a doctorate would obviously not make someone a “distinguished jurist”.

• The word “distinguished” implies exceptional national or international standing, intellectual contribution, integrity and legal competence.

• The challenge is converting that broad constitutional idea into defensible appointment standards.

• Draft Article 103: Today's Article 124 was discussed as Draft Article 103 in the Constituent Assembly.

• H.V. Kamath moved an amendment proposing that a distinguished jurist should also qualify for appointment.

• Kamath's reasoning: He wanted to open “a wider field of choice”. He argued that outstanding juristic learning was not confined to High Court judges or practising advocates.

• This tells us something important about constitutional design: the framers did not see judicial craftsmanship as arising exclusively from prior judicial office.

• They deliberately preserved the possibility that exceptional intellectual expertise could itself justify consideration for India's highest constitutional court.

• Acceptance in principle: Ambedkar explicitly accepted Kamath's proposal.

• His reservation concerned whether “distinguished” was the best adjective. He noted that “eminent” might perhaps be more appropriate and left the Drafting Committee free to settle the expression.

• Important implication: It would therefore be incorrect to describe the provision as an accidental constitutional leftover.

• The eligibility of jurists was consciously debated and deliberately incorporated.

• Constitutional-law perspective: Ayyangar argued that the Supreme Court deals extensively with constitutional questions and that practising lawyers may not always encounter such problems deeply in ordinary litigation.

• He pointed to university law professors, faculty deans, writers and eminent jurists as possible sources of specialised constitutional learning.

• Felix Frankfurter example: Ayyangar cited Felix Frankfurter, then a Harvard Law School professor who was appointed to the U.S. Supreme Court by President Franklin D. Roosevelt.

• The U.S. Senate's historical record confirms Frankfurter's 1939 Supreme Court nomination and confirmation.

• UPSC significance: The debate demonstrates that intellectual diversity on the Supreme Court was contemplated from the Constitution's inception—not invented by contemporary judicial reform discussions.

• H.V. Kamath expressly linked his amendment with qualifications used for the International Court of Justice.

• Article 2 of the ICJ Statute: Judges may be chosen from persons possessing qualifications for the highest judicial offices in their countries or from “jurisconsults of recognized competence in international law”.

• This reflects the same broad principle: judicial talent can come either from conventional judicial careers or from exceptional legal scholarship.

• The Indian Constitution adapted this philosophy into the phrase “distinguished jurist”.

• Supreme Court: No person has so far been appointed as a Supreme Court judge specifically through Article 124(3)(c). Justice Bhuyan's intervention centres precisely on this constitutional non-use.

• Conventional pattern: Most Supreme Court judges are elevated from High Courts.

• A smaller group has been appointed directly from the Bar under Article 124(3)(b), demonstrating that High Court judgeship is not an indispensable intermediate stage.

• Academia remains absent: What has not occurred is direct elevation on the basis of juristic distinction itself.

• This is why Article 124(3)(c) is sometimes described as a constitutional “third route” that exists in law but not in practice.

• Yes, and this is an important constitutional-history point.

• 42nd Amendment: Section 36 of the Constitution (Forty-second Amendment) Act, 1976 inserted Article 217(2)(c), making a person eligible for appointment as a High Court judge if the President considered that person a “distinguished jurist”.

• 44th Amendment: Section 28 of the Constitution (Forty-fourth Amendment) Act, 1978 removed that clause.

• Therefore:

• Supreme Court: distinguished-jurist route still exists under Article 124(3)(c).

• High Courts: no corresponding route exists today under Article 217(2).

• For present High Court appointments, constitutional qualifications are limited essentially to ten years in judicial office or ten years as a High Court advocate, apart from citizenship.

• No.

• This requires understanding the difference between constitutional text and the present appointments convention created by judicial interpretation.

• President's constitutional role: Judges are formally appointed by the President.

• Parliamentary government: Under India's parliamentary system, the President ordinarily acts on the aid and advice of the Council of Ministers under Article 74.

• Judicial appointments jurisprudence: The Supreme Court's Second and Third Judges Cases subsequently established judicial primacy through the Collegium system.

• Present procedure: The Department of Justice states that proposals for Supreme Court appointments are initiated by the Chief Justice of India and formed after consultation with the four senior-most puisne judges of the Supreme Court. The recommendation then moves through the Law Minister and Prime Minister to the President.

• Therefore, the expression “in the opinion of the President” in Article 124(3)(c) cannot realistically be interpreted today as a personal presidential power to bypass the collegium and nominate a scholar.

• The word “Collegium” does not appear in the Constitution. It emerged from Supreme Court interpretation.

• First Judges Case

• S.P. Gupta v. Union of India (1981): The Court initially gave the executive relatively greater weight in appointments and interpreted “consultation” as not necessarily meaning concurrence.

• Second Judges Case

• Supreme Court Advocates-on-Record Association v. Union of India (1993): A nine-judge Bench reversed the earlier approach and established judicial primacy.

• The CJI's opinion was to be formed institutionally, not individually, by consulting senior judges.

• Third Judges Case

• Special Reference No. 1 of 1998: The Supreme Court clarified and expanded the consultative collegium.

• For Supreme Court appointments, the system ultimately developed around the CJI and four senior-most Supreme Court judges. The Department of Justice continues to describe the 1993 decision and 1998 advisory opinion as the basis of the operative Memorandum of Procedure.

• The Collegium system was thus created through constitutional interpretation rather than an express constitutional amendment.

• There is no separately tested precedent because Article 124(3)(c) has never been used.

• However, the existing framework strongly suggests the following route:

• Identification: A possible distinguished jurist would have to come within the institutional consideration of the Supreme Court Collegium.

• Collegium recommendation: The CJI and four senior-most Supreme Court judges would have to assess suitability.

• Government processing: The recommendation would be examined by the Union Law Ministry and processed through the executive.

• Presidential appointment: The President would formally make the appointment.

• The Department of Justice states that the responsibility for initiating Supreme Court appointment proposals rests with the CJI under the existing MoP.

• Current gap: No special MoP criteria appear to have been operationalised for identifying a “distinguished jurist”.

• This is probably one of the most important practical barriers to activating Article 124(3)(c).

• Attempted institutional reform: Parliament enacted the 99th Constitutional Amendment and National Judicial Appointments Commission Act, 2014 to replace the Collegium system with the NJAC.

• The proposed Commission included: Chief Justice of India;

two senior-most Supreme Court judges; Union Law Minister; and two eminent persons.

• Supreme Court judgment: In Supreme Court Advocates-on-Record Association v. Union of India, the Supreme Court struck down the 99th Amendment and NJAC framework in 2015, thereby restoring the Collegium system.

• Reasoning: The majority regarded judicial primacy in higher judicial appointments as closely connected with independence of the judiciary, which is part of the Constitution's basic structure.

• Relevance here: Any serious attempt to revive the distinguished-jurist route must occur within this post-NJAC collegium framework unless the constitutional architecture itself changes.

• A full Supreme Court judge.

• There is no second-class or advisory category under Article 124(3)(c).

• Once appointed, a distinguished jurist would possess essentially the same constitutional judicial office as someone elevated from a High Court or directly from the Bar.

• The judge would: sit on Supreme Court Benches;

hear constitutional, civil and criminal cases; participate in Constitution Benches; write judgments and dissents; enjoy judicial independence; retire at the constitutionally prescribed age; and be removable only through the constitutional removal process.

• Therefore, Article 124(3)(c) is not about occasionally inviting an academic expert. It is about giving that jurist the full judicial power of India's highest court.

• Deep constitutional scholarship: Academics may spend decades researching federalism, equality, liberty, constitutional interpretation, administrative law or comparative constitutional systems.

• Specialised knowledge: Modern Supreme Courts decide highly technical issues involving:

• data protection;

artificial intelligence; biotechnology; competition law; climate law; international taxation; digital platforms; intellectual property; constitutional economics; and emerging technology.

• A scholar with exceptional expertise may enrich adjudication in such areas.

• Comparative perspective: Research careers often expose academics to foreign jurisprudence and competing constitutional theories.

• Long-term thinking: Scholarship can encourage examination of systemic consequences rather than solely resolving the immediate litigation dispute.

• Bench diversity: Diversity is not only social or regional. It can also mean professional and intellectual diversity.

• Nature of Supreme Court: India's Supreme Court is not merely the final appellate court in private disputes. It is also a constitutional court.

• It interprets: Fundamental Rights;

federal relations; legislative competence; institutional powers; constitutional amendments; executive accountability; and the basic structure.

• Academic scholars can spend much of their careers analysing exactly these questions.

• Constituent Assembly intuition: Ayyangar similarly reasoned that constitutional problems can demand a broader kind of juristic knowledge than everyday litigation alone may provide.

• This does not establish that academics are superior to practising judges. Rather, it provides a rationale for mixing professional backgrounds on the Court.

• Courtroom experience: Judicial work differs substantially from academic analysis. Judges must decide real disputes involving incomplete records, procedural constraints, conflicting evidence and immediate consequences.

• Judicial temperament: Legal knowledge alone does not establish that someone possesses patience, restraint, practical judgment or capacity for institutional decision-making.

• Case management: Supreme Court judges handle enormous dockets. An academic may initially lack experience managing hearings, advocates and complex records.

• Identifying merit: Unlike judicial seniority or years of advocacy, “distinguished jurist” is subjective.

• Risk of ideological selection: Governments or institutions could potentially label scholars “distinguished” because their writings align with preferred constitutional positions.

• Transparency problem: Without objective standards, widening the pool might increase rather than reduce controversy surrounding appointments.

• These concerns do not necessarily justify abandoning Article 124(3)(c). They underline the need for rigorous selection criteria.

• Suppose the category includes professors. Several difficult questions immediately arise:

• There is no mathematical answer.

• The Constitution intentionally uses a qualitative test. The challenge is ensuring that flexibility does not become arbitrariness.

• No.

• That is precisely why Article 124(3)(c) exists separately from Article 124(3)(b).

• If ten years of advocacy were compulsory for every jurist, the independent jurist route would lose much of its constitutional meaning.

• Justice Bhuyan also argued that practising before a court is not necessarily required for a person to qualify intellectually as a distinguished jurist.

• However, absence of courtroom experience may still legitimately be considered as a suitability factor, even though it is not a constitutional eligibility requirement.

• Different constitutional structure: The U.S. Constitution does not prescribe an Indian-style requirement of prior judgeship or a fixed period of legal practice for U.S. Supreme Court nominees.

• Felix Frankfurter: Frankfurter was a distinguished Harvard law professor before President Franklin D. Roosevelt nominated him to the U.S. Supreme Court in 1939. His confirmation is recorded in the U.S. Senate's historical nomination records.

• Justice Bhuyan also referred to American experience to argue that distinguished legal scholars can successfully move into constitutional adjudication.

• Comparative caution: India should not mechanically copy the United States because its appointment system, political institutions and judicial structure differ substantially.

• The comparative lesson is narrower: previous judicial office is not universally considered an indispensable condition for constitutional-court membership.

• H.V. Kamath himself said his proposal drew from the international judicial model.

• Article 2 of the ICJ Statute allows judges to come from either:

• persons qualified for the highest judicial offices; or

jurisconsults of recognised competence in international law.

• This resembles Article 124(3)'s dual philosophy: professional judicial/legal experience + exceptional juristic learning.

• For UPSC, this is a useful constitutional-history and international-law linkage.

• Potentially, but diversity has several dimensions.

• Professional diversity: A Bench dominated by career judges may benefit from occasional representation from academia, specialised legal fields or other juristic backgrounds.

• Intellectual diversity: Different methods of interpreting statutes and the Constitution can enrich deliberation.

• Specialisation: Scholars may bring deep knowledge of areas not widely represented among sitting judges.

• Social diversity: Article 124(3)(c), however, should not be treated as a substitute for improving gender, caste, regional and community representation.

• A well-designed appointment system must consider all dimensions of diversity while ensuring merit and independence.

• The provision itself does not necessarily weaken judicial independence.

• The danger depends on how appointments are made.

• If a government could unilaterally declare ideological allies “distinguished jurists”, independence concerns would be serious.

• But if jurists are chosen through: clear eligibility indicators;

a collegium-led evaluation; transparent reasons; institutional consultation; integrity checks; and demonstrated national standing,

• the provision could actually broaden judicial competence without compromising independence.

• The central problem is therefore procedural safeguards, not the existence of Article 124(3)(c).

• Judicial independence: Independence of the judiciary is recognised as part of the Constitution's basic structure.

• The higher-judiciary appointment system is therefore constitutionally sensitive.

• NJAC judgment: The Supreme Court struck down the NJAC framework because the majority believed the proposed system compromised the institutional safeguards necessary for judicial independence.

• Article 124(3)(c): Activating the jurist route does not require abandoning judicial independence. Instead, the appointment must remain compatible with the constitutional principles developed through the Judges Cases.

• This makes the topic directly relevant to GS2 questions on constitutional bodies, separation of powers and independence of the judiciary.

• This distinction is fundamental.

• Eligibility: Article 124(3) tells us who may constitutionally be considered.

• A distinguished jurist can be eligible even without conventional judicial experience.

• Suitability: Whether that eligible person should actually become a Supreme Court judge involves a much wider assessment of:

• integrity;

independence; legal ability; temperament; constitutional values; institutional experience; quality of scholarship; public reputation; and ability to perform judicial functions.

• Being constitutionally eligible does not create a right to appointment.

• Article 124(3)(c) merely expands the pool from which an appropriate appointment can be made.

• No.

• That is one of the most important facts in this entire debate.

• Article 124(3)(c) already authorises such an appointment.

• The constitutional route exists today.

• What is missing is practical utilisation and a sufficiently clear institutional method for identifying, scrutinising and recommending appropriate candidates.

• Therefore, reform could begin through better appointment procedures and Collegium/MoP practices rather than necessarily amending the Constitution.

• A workable framework could establish broad indicators rather than an inflexible numerical formula.

• Possible indicators might include: recognised contribution to legal scholarship;

major publications or jurisprudential work; national or international standing; contribution to constitutional or public law; teaching and research experience; public institutional service; independence from political interests; reputation for integrity; interdisciplinary expertise; ability to engage with practical adjudication.

• A special consultation process involving senior judges and eminent legal scholars could also provide inputs, while the constitutional recommendation remains with the competent appointing institutions.

• The aim should be to identify truly exceptional jurists—not to turn academic seniority into another automatic promotion channel.

• No.

• The two issues should be separated.

• Article 124(3)(c) problem: The available constitutional talent pool has not been fully utilised.

• Collegium problem: Concerns persist regarding transparency, objective selection criteria, accountability, diversity, delays and communication between the judiciary and executive.

• Bringing one scholar to the Bench would not resolve those institutional debates.

• However, explicitly considering jurists could make the selection pool broader and expose the Collegium to a wider conception of judicial merit.

• The modern Supreme Court increasingly deals with questions that combine law with:

• technology;

economics; climate science; artificial intelligence; medicine; data governance; international trade; competition policy; and financial regulation.

• A constitutional court may therefore benefit from judges whose careers have included serious specialised research.

• At the same time, courts must ultimately decide disputes according to evidence, procedure and precedent.

• The most effective model may therefore be a mixed Bench, combining experienced career judges, distinguished advocates and, occasionally, exceptional jurists.

• The provision reveals that the Constitution's framers did not conceive judicial excellence as having a single professional pathway.

• They recognised three different forms of legal experience:

• Judicial experience: knowledge gained from deciding cases.

• Advocacy experience: knowledge gained from arguing cases.

• Juristic experience: knowledge gained from deep study, scholarship and development of law.

• This plural conception of legal excellence is the underlying constitutional significance of Article 124(3).

• Constitutional provision: Article 124(3)(c) permits appointment of a distinguished jurist to the Supreme Court.

• Unused route: It has never been used.

• Constituent Assembly: H.V. Kamath proposed it; B.R. Ambedkar accepted the principle; Ayyangar strongly supported drawing talent from legal academia.

• ICJ connection: Kamath referred to the international judicial model.

• High Courts: A similar provision was briefly inserted into Article 217 by the 42nd Amendment and removed by the 44th Amendment.

• Appointment mechanism: Present Supreme Court appointments function through the Collegium and MoP framework.

• Analytical theme: The issue involves the balance between diversity and experience, scholarship and judicial craftsmanship, and flexibility and transparency.

• GS2 linkage: Judiciary, Constitution, separation of powers, appointment of judges, judicial independence, Collegium system and constitutional governance.

• Operationalise the constitutional option: Article 124(3)(c) should be treated as a genuine constitutional pathway rather than a decorative provision that remains permanently unused.

• Develop transparent criteria: The Supreme Court Collegium and government should consider specifying broad indicators for determining who may qualify as a distinguished jurist while preserving sufficient constitutional flexibility.

• Integrate the route into the MoP: The Memorandum of Procedure could explicitly explain how jurist candidates are identified, evaluated and processed.

• Preserve judicial primacy and independence: Any new procedure must operate consistently with the constitutional jurisprudence protecting independence of the higher judiciary.

• Assess judicial temperament alongside scholarship: Academic excellence alone should not be sufficient. Candidates should also be evaluated for impartiality, practical judgment, institutional temperament and ability to manage adversarial adjudication.

• Avoid ideological appointments: Transparent, evidence-based indicators of juristic distinction are necessary so that the provision does not become a route for rewarding individuals because of political or ideological proximity.

• Broaden the search for talent: Potential candidates need not be confined to conventional university professors. Eminent experts in constitutional law, international law, commercial law, technology law and other fields may also merit consideration.

• Promote professional diversity: Supreme Court composition should ideally draw upon complementary experience from the Bench, Bar and distinguished legal scholarship.

• Improve Collegium transparency generally: Jurist appointments should form part of wider reforms aimed at clearer selection criteria, timely appointments, reasoned decision-making and greater diversity.

• Use the provision sparingly: Its purpose is not to create an academic quota. Appointments should remain exceptional and based on demonstrable juristic distinction.

• The objective should be neither to privilege academics over judges nor to treat courtroom experience as the only legitimate form of legal excellence. A constitutional court is strengthened when different forms of exceptional legal knowledge can complement one another.