Distinguished Jurists as Supreme Court Judges: The Long-Ignored Constitutional Mandate Under Article 124(3)
Overview
A sitting Judge of the Supreme Court of India has raised a pointed and thought-provoking question — one that touches the very foundation of judicial appointments in the country. Justice Ujjal Bhuyan, delivering the convocation address at the 13th Convocation of National Law University Delhi (NLU Delhi) for its postgraduate programmes, drew attention to a constitutional provision that has existed since the inception of the Republic yet has never once been acted upon.
The provision in question is Article 124(3) of the Constitution of India, which permits the President to appoint a person recognised as a distinguished jurist to the Supreme Court of India. Despite this express constitutional enablement, not a single legal academic or jurist has been elevated to the Supreme Court under this route in more than 76 years since Independence.
Justice Bhuyan's remarks have reignited a debate that is long overdue — not merely as an academic exercise, but as a constitutional necessity that directly bears on the quality, diversity, and independence of judicial decision-making at the apex level.
Article 124(3) and the Unused Constitutional Gateway
Article 124(3) of the Constitution of India lays down the eligibility criteria for appointment as a Judge of the Supreme Court. Beyond the well-known categories of High Court Judges and advocates of prescribed standing, the provision explicitly includes a third category — a person who is, in the opinion of the President, a distinguished jurist.
This was not an accidental or incidental inclusion. It was a deliberate constitutional choice, made after considerable deliberation during the framing of the Constitution. Yet, as Justice Bhuyan noted with evident concern, this provision has remained a dead letter for the entirety of India's post-Independence judicial history.
"It is regrettable that this provision has remained one of our Constitution's unused mandates."
— Justice Ujjal Bhuyan
The complete absence of any appointment under this provision — across governments of different political persuasions and across multiple iterations of the collegium system — raises serious questions about institutional intent and commitment to constitutional fidelity.
Constituent Assembly Debates and the Vision Behind the Provision
H V Kamath's Proposal
Justice Bhuyan traced the origins of this provision to the Constituent Assembly Debates, drawing attention to the proposal moved by H V Kamath, who advocated for broadening the pool of candidates eligible for appointment as Supreme Court Judges. Kamath's proposal sought to move beyond the conventional categories of sitting Judges and practising advocates to include distinguished legal academics and jurists.
Crucially, this proposal was accepted by the Constituent Assembly, signalling a clear legislative intent that India's apex court should benefit from the scholarship and intellectual rigour that eminent legal academics bring to constitutional adjudication.
As Justice Bhuyan observed:
"The Constituent Assembly evidently felt it important to have legal academics and professors as Judges of the Supreme Court of India."
The fact that this intent has been disregarded for over eight decades — without any formal explanation or institutional accountability — constitutes a significant departure from the constitutional vision of the framers.