a Latest News
- 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.
- Article 124(3) provides that a person can become a Supreme Court judge if they are an Indian citizen and -
- 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).
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
Article 124(3) FAQs
Q1: What are the three routes for appointment as a Supreme Court judge under Article 124(3)?
Ans: Qualify as a High Court judge for five years, an advocate for ten years, or a “distinguished jurist” in the President’s opinion.
Q2: Why has the “distinguished jurist” route under Article 124(3) remained unused?
Ans: Due to failure of the government and collegium to seriously explore the provision.
Q3: How can distinguished jurists contribute to the functioning of the Supreme Court?
Ans: They can diversify the Bench and bring specialised expertise in constitutional law, public law, legal scholarship and jurisprudence.
Q4: What was the rationale behind introducing the “distinguished jurist” provision in the Constitution?
Ans: To widen the pool by enabling persons with outstanding legal and juristic learning to enter the Supreme Court.
Q5: What is the significance of Article 124(3) in the context of judicial appointments?
Ans: It provides constitutional flexibility to induct eminent legal scholars into the Supreme Court.
