**The Unused Power: What Article 124(3) Says and Why It Matters**

Title: "Supreme Court’s ‘Distinguished Jurist’ Provision: Why 76 Years of Inaction on Article 124(3) Matters Now" --- Summary Box: At the 13th convocation of National Law University, Delhi, Supreme Court Justice Ujjal Bhuyan urged the activation of Article 124(3)—a 76-year-old constitutional provision allowing the President to appoint "distinguished jurists" (including legal academics) directly to the Supreme Court. No such appointment has ever been made, despite the provision’s potential to diversify the Bench with scholarly expertise. His remarks come amid tensions between student bodies and the judiciary, raising questions about institutional tolerance, the judiciary’s composition, and the untapped role of legal academia in shaping constitutional jurisprudence. --- The Constitution of India, under Article 124(3), empowers the President to appoint a "distinguished jurist" as a Supreme Court judge—without requiring prior judicial experience. This provision, unique among common-law jurisdictions, was designed to infuse the Court with diverse legal scholarship beyond the traditional pool of high court judges and senior advocates. Yet, in 76 years, not a single jurist has been appointed under this clause. Justice Bhuyan’s critique at NLU Delhi exposed two possible reasons for this inertia: 1. Institutional skepticism about the "depth" of Indian legal academia. 2. Procedural neglect—the provision was simply "not seriously taken." This omission is striking given the Supreme Court’s role as the "moral, legal, and constitutional conscience keeper of the nation" (per Justice Bhuyan). The Court’s jurisprudence often grapples with complex questions—from Basic Structure Doctrine interpretations to Right to Privacy expansions—where interdisciplinary legal scholarship could enrich deliberations. - Article 124(3)(c): Permits appointment of a "distinguished jurist" alongside judges elevated from High Courts or the Bar. - Global precedents: The UK Supreme Court includes academics (e.g., Lord Sumption), while the US Supreme Court has had justices like Felix Frankfurter, a Harvard Law professor. - Indian contrast: The Law Commission of India (2008) noted that the absence of jurist appointments limits the Court’s "intellectual diversity." - Judicial pushback: In Supreme Court Advocates-on-Record Association v. Union of India (2015), the Court upheld the National Judicial Appointments Commission (NJAC) judgment but did not address the jurist provision’s dormancy. The provision’s non-use reflects a broader tension: Does the judiciary view legal academia as a partner in constitutional interpretation, or as an outsider lacking "practical" credentials? Justice Bhuyan dismissed this as a "shallow objection," arguing that the Supreme Court’s mandate transcends technicalities. --- ## The Context: Student Protests, Judicial Tolerance, and Institutional Trust Justice Bhuyan’s remarks arrived against a charged backdrop. Student bodies at premier law universities—including National Law School of India University (NLSIU), Bangalore—had boycotted convocations to protest Chief Justice of India (CJI) Surya Kant’s presence, citing his oral remarks in court (e.g., calling certain litigants "cockroaches" and "parasites"). The Bar Council of India (BCI) initially retaliated by barring the 2026 NALSAR batch from professional enrolment, though it later retracted the directive under public pressure. :::callout Did You Know? The Second Judges Case (1993) established the collegium system for judicial appointments, but it did not clarify how "distinguished jurists" would be identified or nominated—leaving the provision in limbo. Ironically, the same judgment emphasized "diversity" on the Bench, yet the jurist category remains untouched. ::: This episode underscores two institutional challenges: 1. Judicial language and accountability: While judges enjoy Article 121 immunity for judicial acts, oral remarks—though not binding—can erode public trust. The Restatement of Values of Judicial Life (1997) advises restraint, but enforcement is opaque. 2. Academia-judiciary divide: Law universities, as training grounds for future jurists, are increasingly asserting their role in constitutional discourse. Yet, the judiciary’s reluctance to integrate academic voices risks creating a feedback loop of mutual distrust. - Student protests: NLUs have historically been sites of legal activism (e.g., protests against Citizenship Amendment Act 2019). - BCI’s overreach: The Council’s threat to disbar students for dissent raised Article 19(1)(a) concerns, prompting interventions from the University Grants Commission (UGC). - CJI’s response: Justice Kant later clarified his remarks were "metaphorical," but the incident reignited debates on judicial temperament vs. free speech. Justice Bhuyan’s call for tolerance—"A democratic society cannot be built on the edifice that everyone will think alike"—was a subtle rebuke to both judicial insularity and academic absolutism. --- ## Why Legal Scholarship on the Bench Could Reshape Indian Jurisprudence The absence of jurist appointments has concrete implications for how the Supreme Court engages with three critical areas: ### 1. Constitutional Interpretation and Comparative Law Legal academics often specialize in comparative constitutionalism, socio-legal theory, or historical jurisprudence—domains where judicial experience is not a prerequisite. For instance: - The Kesavananda Bharati Case (1973) relied heavily on Granville Austin’s scholarship on the Basic Structure Doctrine, yet no academic was on the Bench to debate its contours. - Recent debates on Article 370 or Aadhaar’s privacy implications could have benefited from jurists versed in federalism theory or digital rights frameworks. ### 2. Technical and Scientific Adjudication Cases involving climate litigation, AI regulation, or biotech patents demand expertise beyond traditional legal training. A jurist with a science-policy background (e.g., from institutions like Indian Institute of Science or National Law University’s tech-law centers) could bridge this gap. ### 3. Public Trust and Legitimacy The Supreme Court’s legitimacy crises—from Medical Admissions Scam (2017) to Prashant Bhushan Contempt Case (2020)—often stem from perceptions of elite insularity. Including jurists from marginalized communities or regional universities could counter this narrative. --- ## The Path Forward: How to Activate Article 124(3) Justice Bhuyan’s proposal requires three structural changes: 1. Define "Distinguished Jurist" - The Law Commission or a Supreme Court-constituted committee could draft criteria, balancing scholarly impact (publications, citations) and public engagement (policy contributions, teaching). - Model: The UK’s Judicial Appointments Commission uses peer-reviewed metrics for academic appointees. 2. Integrate with the Collegium System - The Second Judges Case collegium (CJI + 4 senior judges) could include a nomination sub-committee with legal academics and civil society representatives to identify jurists. - Transparency: Publish shortlisted names and rationale, as done for Rajya Sabha nominations. 3.