Next month, Professor Andrew Burrows (University of Oxford) shall be sworn in as a Justice/Judge of the United Kingdom Supreme Court. Prof. Burrows is following the footsteps of the great Baroness Lady Hale (former Chief Justice of the Court and author of the judgment quashing the prorogation of the UK Parliament) who had also travelled from the academy to the Bench. Appointment of a law professor or an academician as a Judge is not uncommon. In fact, some of the greatest Judges have been law professors prior to their appointments.
For instance, Justice Felix Frankfurter (a former renowned Justice of the Supreme Court of the United States 'SCOTUS') was a Professor at Harvard Law School prior to his appointment. Similar is the case with Justice Stephen Bryer (sitting Associate Justice of SCOTUS). In fact, it is common for Justices of the Court to have had some teaching experience prior to their appointment.
Sadly, this practice has not been followed in India, despite our Constitution providing for it. Our Constitution makers, inspired by the US Constitution, wanted law professors to serve the Bench and accordingly created the category of a 'distinguished jurist' who could be appointed as a Judge of the Supreme Court. In the present post, I shall explain the said provision of our Constitution and the intent behind its incorporation. Thereafter, I shall address the popular belief that no appointments have been under the clause, and make an argument that this might not be true.
A. Article 124(3) of the Constitution-
Article 124(3) of the Constitution provides for the appointment of Judges to the Supreme Court of India. It states that a citizen of India may be appointed as a Judge of the Supreme Court if,
(a) She/he has been a Judge of a High Court for at least five years ("Appointment from the Bench")
(b) She/he has been an advocate of a High Court for at least ten years ("Appointment from the Bar")
(c) She/he is in the opinion of the President, a distinguished jurist ("Distinguished Jurist")
Although the phrase 'distinguished jurist' has not been defined, if we peruse the Constituent Assembly Debates, the intent behind its incorporation and the meaning becomes clear. According to Mr. HV Kamath (a member), the category of distinguished jurist would widen the pool of candidates and include individuals who are possessed of outstanding legal and juristic learning (May 24, 1949).
In fact, the Assembly was heavily impressed and inspired by the appointment of Professor Frankfurter to the SCOTUS.
M. Ananthasayanam Ayyangar, a member remarked,
"…In various cases a Supreme Court has to deal with constitutional issues. A practicing lawyer barely comes across constitutional problems. A person may enter the profession of Law straightaway. He might be a member of a Law College or be a Dean of the Faculty of Law in a University. There are many eminent persons, there are many writers, there are jurists of great eminence. Why should it not be made possible for the President to appoint a jurist of distinction, if it is necessary? As a matter of fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation. I am told, Sir, by my honourable Friend, Shri Alladi, whom I consulted, that some years ago President Roosevelt in the U.S.A. appointed one Philip Frankfurter. He was a Professor in the Harward University. That was a novel experiment that he made. Before that, barristers were being chosen and also persons from the judiciary. This experiment has proved enormously successful. He is considered to be one of the foremost judges, one of the most eminent judges in the U.S.A. Therefore, Sir, I am in agreement with the proposal to add a jurist also, a distinguished jurist, in the categories for the choice of a judge of the Supreme Court."
Therefore, the idea behind the category was to appoint individuals with outstanding legal and juristic learning (which included law professors) as Judges of the Supreme Court.
The provision has been a part of our Constitution for over 70 years; however, no Professor has reached the Supreme Court till date. In the past, there have been rumours for appointment of Prof. Upendra Baxi and Late Prof. P.K. Tripathi but nothing came of it. The reason why the Supreme Court's Collegium (the body responsible for recommending names of the Justices) has not considered the clause, is arguably because it is believed a Professor although knows the theoretical aspects of the law, lacks its practical knowledge. Further, the Indian Supreme Court adjudicates cases of varied subject matters, whereas a Professor holds a specialisation in limited subjects.
The lack of practical knowledge is not due to a Professor's fault but the statutory rules. One can learn the practical nuances of the law, only by practising as an advocate. However, as per Rule 49 of the Bar Council of India Rules, an advocate cannot be a full-time employee. Therefore, a person cannot be an advocate and a law professor at the same time, as she/he is not allowed to be a full-time employee. Further, as per the Advocates (Right to Take up Law Teaching) Rules, 1979 an advocate may be employed in an educational institution for the teaching of law, provided she/he teaches only for three hours in a day. The said rule is also an hinderance, as a Professor performs obligations that last longer than three hours a day.
Interestingly, the medical profession has no bar on professors practising what they teach, as they are allowed to treat the patients. The same rule should apply to the legal profession as well. Fortunately, a demand has been made by the Consortium of National Law Universities to the Bar Council of India to allow full time teachers to practice before the Courts.
Second, the argument of varied subject matters can be countered, as practising advocates also have preferred practice areas. For instance, a civil lawyer will mostly not argue criminal cases. However, when the advocate is elevated to the Bench, she/he has no control over the subject matter of the cases before her/him. Although, since majority of the Court's appointments are from the Bench i.e. Judges of the High Court, they get the requisite experience and training in the High Court.
The Parliament may consider amending the Constitution to introduce the category of 'distinguished jurist' for appointment of Judges to the High Court, so that law professors get the training and experience, which a member of the Bar gets at the High Court. This shall remove the hinderance of dealing with varied subject matters. Interestingly, the infamous 42nd Amendment to the Constitution had introduced this provision, but it was quickly revoked by the 44th Constitutional Amendment.
If a Constitutional Amendment is an unlikely route, the Supreme Court may consider placing the law professor on a roster wherein the cases of her/his subject matter are heard. This may be helpful especially for Constitution Benches i.e. where an interpretation of the Constitution is to be made and a constitutional law professor may provide important insights.
It is commonly believed that since no Professor has been appointed under Article 124(3)(c), the clause remains unused. I myself was of this opinion until a few months ago.
In 2011, the Central Information Commission ("CIC") gave a decision in Anshu Kumar v. Ministry of Law and Justice, Department of Justice (Case No. CIC/SS/A/2011/000175), wherein the Respondent made some interesting revelations. In the said case, the Appellant had filed RTIs seeking information on appointments under the category of 'distinguished jurist' under Article 124(3). Dissatisfied with the response, the Appellant had filed an appeal before the CIC. During the hearing, the Respondent i.e. Department of Justice ("Department") had submitted that the provision for 'distinguished jurist' has been used only four times. In other words, according to the government records, four 'distinguished jurists' have been appointed to the Supreme Court under Article 124(3)(c).
To find out the names of such individuals and other related information, I filed an RTI with the Department of Justice to that effect. Interestingly, the Department took a contrary stance (differing from Anshu Kumar's case) and stated that no distinguished jurist has been appointed under Article 124(3). The relevant response is reproduced below:
The Department is supposed to provide conclusive information and not leave the applicant guessing and hence, the contrary views are problematic. However, I align with the first view i.e. appointments under the Clause have indeed been made, possibly in the form of Justice Subimal Chandra Roy and Justice TL Venkatrama Aiyyar.
Justice Roy was a well-known lawyer at the Calcutta High Court and was elevated to the Supreme Court in 1971. As per public records, he did not serve as a High Court Judge, therefore he could not have been appointed from the Bench under Article 124(3)(a). Further, according to the Department, he was not elevated from the Bar under 124(3)(b) either (this information was provided by the Department in response to my RTI). This leaves only one possible category for his appointment i.e. as a 'distinguished jurist' under 124(3)(c).
Justice TL Venkatrama Aiyyar was appointed to the Court in 1954. As per public records, he had served as a High Court Judge only for three years (1951-1954) and hence, could not have been appointed under 124(3)(a) as it requires a minimum experience of five years. Further, according to the Department he was also not elevated from the Bar under 124(3)(b). Hence, Justice Aiyyar was probably appointed as a distinguished jurist. In fact, Justice Nariman in a lecture had pointed out this conundrum as well.
Therefore, it seems that at least two appointments have indeed been made under Article 124(3)(c), although the appointees have not been law professors.