Article 124(3) and the Unused Route to the Supreme Court

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• More than 76 years after the Constitution came into force, the provision (Article 124(3)) allowing a “distinguished jurist” to be appointed directly as a Supreme Court judge has never been used. 
• Speaking at the 13th convocation of National Law University Delhi on August 30, 2026, Justice Ujjal Bhuyan described this as an “unused mandate” that requires serious consideration.
• He argued that bringing distinguished jurists from legal academia and scholarship could diversify the Supreme Court Bench.
• It could strengthen the SC’s ability to address public law and constitutional questions, and reduce excessive dependence on narrow technicalities.

Constitutional Provision – Article 124(3)

• Three routes to the Supreme Court:
  • Article 124(3) provides that a person can become a Supreme Court judge if they are an Indian citizen and –
    • Have been a High Court judge for at least five years;
    • Have been an advocate of a High Court for at least ten years; or
    • Are, in the opinion of the President, a “distinguished jurist.”
  • The first two routes have traditionally been used. Most Supreme Court judges are elevated from the High Courts, while a smaller number are appointed directly from the Bar. The third route has never been exercised.
• High Court provision:

• • Article 217 deals with appointment of High Court judges. 
  • During the Emergency, the 42nd Constitutional Amendment (1976) introduced a similar provision for appointing distinguished jurists to High Courts. 
  • However, this provision was subsequently removed by the 44th Constitutional Amendment (1978).

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Why Was the Jurist Route Introduced?

• The provision originated during the Constituent Assembly debates on May 24, 1949.
• H.V. Kamath – Broaden the talent pool:
  • H.V. Kamath argued that Supreme Court appointments should not be confined exclusively to judges and practising advocates. 
  • The Constitution should permit persons possessing “outstanding legal and juristic learning”, even if they had never practised in court.
  • He cited the International Court of Justice (ICJ) as an example of a judicial institution drawing upon wider legal expertise.
• M. Ananthasayanam Ayyangar – Need for constitutional expertise:

• • Ayyangar supported the proposal, observing that practising lawyers may not necessarily encounter the complex constitutional and public-law questions routinely dealt with by a constitutional court.
• B.R. Ambedkar: He did not oppose the principle. His concern was primarily with the terminology—particularly whether “distinguished” was the appropriate word. The provision was ultimately adopted.

Who Is a “Distinguished Jurist”?

• The Constitution does not define the term.
• Broadly, it can encompass persons with exceptional expertise in legal practice, teaching, research or jurisprudence, including eminent legal academics who may lack conventional courtroom experience.
• However, India presents an institutional difficulty – Bar Council rules generally restrict full-time law teachers from simultaneously practising law. 
• Consequently, outstanding academics may not possess the litigation experience traditionally associated with judicial appointments.

Why Has the Provision Remained Unused?

• Perceived lack of suitable candidates: Successive governments and, later, the judicial collegium may have believed that Indian legal academia has not produced candidates with sufficient depth and distinction for appointment to the SC
• Lack of serious exploration: An alternative explanation is that neither the government nor the collegium has seriously explored the constitutional avenue.
• Problem reinforced by the present collegium system: 

• • Although Article 124(3) refers to the President’s opinion, contemporary Supreme Court appointments are initiated through the Supreme Court collegium. 
  • Therefore, a distinguished jurist would ordinarily need to be identified and recommended by the collegium before the government processes the appointment.

Why Revive the Provision?

• Justice Bhuyan’s argument goes beyond simply increasing the number of potential candidates.
• A distinguished jurist could –
  • Diversify the composition of the Supreme Court Bench;
  • Bring stronger expertise in constitutional and public law;
  • Introduce perspectives from legal scholarship and academia;
  • Enrich judicial reasoning beyond narrowly technical questions;
  • Strengthen the Court’s capacity to deal with increasingly complex constitutional, institutional and socio-legal issues.
• Thus, Article 124(3) can potentially serve as a mechanism for bringing specialised legal knowledge into India’s highest constitutional court.

The Institutional Challenge

• The larger issue is not merely whether India has eminent jurists, but how they should be identified and appointed.
• The absence of a transparent, accepted definition of “distinguished jurist”, combined with the predominance of the collegium system, creates uncertainty over –
  • Who qualifies 
  • Who identifies the candidate 
  • What criteria are applied
  • How independence and merit are protected
• The experience of legal scholar Upendra Baxi, who was reportedly considered for judicial elevation but was never appointed, illustrates how the jurist route has remained largely theoretical.

Source: IE