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No 'Distinguished Jurist' Appointment As Supreme Court Judge Yet

Ashok Kini
3 Sep 2021 4:22 AM GMT
No Distinguished Jurist Appointment As Supreme Court Judge Yet
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The President of India appointed eight High Court Judges and one Senior Advocate as Judges of the Supreme Court of India. If we survey the appointments since 1950, it can be seen that most of the appointees are from 'High Court judges' category. Senior Advocate PS Narasimha is the ninth lawyer (since 1950) to be appointed as judge directly from the bar. But not even one appointment has been...

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The President of India appointed eight High Court Judges and one Senior Advocate as Judges of the Supreme Court of India. If we survey the appointments since 1950, it can be seen that most of the appointees are from 'High Court judges' category. Senior Advocate PS Narasimha is the ninth lawyer (since 1950) to be appointed as judge directly from the bar. But not even one appointment has been made from 'distinguished jurist' category till date.

As per Article 124 of the Constitution of India, a person is eligible to be appointed as Judge of the Supreme Court if he/she (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. 

On this issue, it is apt to quote Professor Upendra Baxi, who in an interview to LiveLaw in 2014, said: "In 67 years of Independence, the Presidents of India have been looking with a telescope and have not found any jurist worth appointing as a Supreme Court Judge! So obviously jurists don't exist in India. Hence, I think this is a dead issue.". He responded thus while he was asked about his views on appointing academicians as Judges.

We are now celebrating 75 years of Independence, but the President of India has not yet 'found' one. But that does not mean, they do not exist.

HV Kamath's amendment

The draft Constitution submitted before the Constituent Assembly did not contain 'distinguished jurist' category for appointment as Judges to the Supreme Court. During the discussion on this, Hari Vishnu Kamath, a member, moved an amendment to insert the clause: '(c) or is a distinguished jurist.' 

"The object of this little amendment of mine is to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court...I am sure that the House will realize that it is desirable, nay it is essential, to have men—or for the matter of that, women—who are possessed of outstanding legal and juristic learning....In my humble judgment, such are not necessarily confined to Judges or Advocates.", he said.

Kamath said that the draft Article restricted the selection of judges to only two categories. One category consists of those who have been judges of a High Court or of two or more such courts in succession and the second category consists of those who have been advocates of a High Court or of two or more High Courts in succession. Moving his amendment, he said it is based on the provision relating to the qualifications for Judges of the International Court of Justice at the HagueAccording to Article 4 of the Statute of the International Court of Justice, the Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

I hope the House will see its way to accept my amendment and thus give a wider choice for the President in the matter of appointment of Judges of the Supreme Court, Kamath said.

M. Ananthasayanam Ayyangar agreed with this suggestion by Kamath. He said:  "When, Sir, I agree with my honourable Friend, Mr. Kamath, when he says that the choice of Supreme Court judges ought not to be limited to judges already in service and of ten years' standing. He has moved that it ought to be open to the President, if he so chooses, in the interest of proper administration of justice, to include a distinguished jurist. His amendment does not make it obligatory upon the President to choose only a jurist only among jurists."

Ayyangar said that in various cases a Supreme Court has to deal with constitutional issues and 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 an 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." , he said referring to the appointment of Felix Frankfurter, who was a Professor in the Harward University, who was later appointed as judge of the Supreme Court of the United States.

"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. ", Ayyangar added. 

Dr. BR Ambedkar expressed some reservation on whether the word "distinguished" is the proper word in the context. "It has been suggested to me that the word "eminent" might be more suitable. But as I said, I am not in a position to make up my mind on this subject; and I would, therefore, like to make this reservation in favour of the Drafting Committee, that the Drafting Committee should be at liberty when it revises the Constitution, to say whether it would accept the word " distinguished" or substitute " eminent" or some other suitable word.", he added.

After this, Kamath's amendment was put to vote and was adopted by substituting the word 'distinguished' with 'eminent'. (Later, it seems that 'distinguished' was restored) 



 






Later, during discussions about the provision related to appointment of High Court judges, Prof. Shibban Lal Saksena said:  I do not see why we should not provide that a distinguished jurist should be appointed as a Judge of the High Court also. But this amendment moved by him was negatived.

This 'distinguished jurist' category was added to Article 217 (appointment of High Court judges) by the 42nd Constitution amendment. But the same was deleted by the 44th Constitution Amendment.

Qualification for Judgeship In Other Countries

The United States Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. The SCOTUS official website states that "a Justice does not have to be a lawyer or a law school graduate". It also reveals that the last Judge to be appointed who did not attend any law school was James F. Byrnes (1941-1942). He did not graduate from high school and taught himself law, passing the bar at the age of 23. Another example given is of Justice Robert H. Jackson (1941-1954).

In United Kingdom, Andrew Burrows, an eminent law professor at Oxford University, was appointed a judge last year. Constitutional Reform Act 2005, provides that the applicants to the post of Supreme Court must have held high judicial office for at least two years. Alternatively, applicants must satisfy the judicial-appointment eligibility condition on a 15-year basis, or have been a qualifying practitioner for at least 15 years.

In Russia,  Constitutional Court Judges shall be citizens of the Russian Federation over 25 years of age with a higher education in law who have served in the legal profession for not less than five years. Federal law may establish additional requirements for judges of the courts of the Russian Federation. In Australia, a person shall not be appointed as a Justice of its High Court unless:(a) he or she is or has been a Judge of a court created by the Parliament or of a court of a State or Territory (other than a Judge or acting Judge of the Local Court of the Northern Territory); or (b) he or she has been enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court or of the Supreme Court of a State or Territory for not less than 5 years. South African Constitution requires that a person must be 'appropriately qualified' and 'a fit and proper person' to be a judge. In New Zealand, 'a practising certificate as a barrister or solicitor for at least 7 years' is required to become its High Court judge.

As per Bangladesh Constitution, a person, to be a judge of its Supreme Court, should have (a) for not less than ten years, been an advocate of the Supreme Court or (b)  for not less than ten years, held judicial office in the territory of Bangladesh ; or (c) has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court. The Constitution of Pakistan also do not provide a possibility for people other than judges or lawyers to become judges of its Supreme Court. Any Nepali citizen who holds a bachelor degree of law and has worked as Chief Judge or Judge of the High Court for seven years or has practiced law for at least fifteen years as a law graduate senior advocate or advocate or has worked for at least fifteen years in the judicial or legal field or has worked as a gazetted officer first class or above of the judicial service for at least twelve years is eligible for appointment as a Judge of the Supreme Court.

Constitutions Which Allow Professors/Academicians to be Judges Of Apex Courts

The Constitution of the countries listed below allow Professors/Academicians to become Judges of their Apex Courts. (This list is not exhaustive)

Kenya: A person who possess at least fifteen years' experience as a superior court judge or a distinguished academic, judicial officer, legal practitioner or such experience in other relevant legal field, is qualified to become the Judge of Supreme Court. Joel Ngugi, an associate professor at the UW School of Law, was appointed as a Judge of High Court of Kenya in 2011. 

Algeria: A person is qualified to be a judge of Constitutional Court if he has more than fifteen (15) years' of legal experience in higher education at the rank of professor, in magistracy, as a lawyer at the Supreme Court or the Council of State, or in a high State office.

Albania: The judge of the Constitutional Court shall have a law degree, at least 15 years of experience as judges, prosecutors, advocates, law professors or lectors, senior employees in the public administration, with a renowned activity in the constitutional, human rights or other areas of law. 

Bolivia: In order to become a Magistrate of the Supreme Court of Justice one must meet the following requirements: satisfy the general requisites established for public servants; be thirty years of age; have a law degree; have honestly and ethically performed judicial functions, practiced as a lawyer or have been a university professor for eight years; and not have been sanctioned with dismissal by the Council of Magistrates. The determination of merit shall take into account performance as a native authority under its system of justice.

Jordan Constitution Court: Those who served as judges in the Court of Cassation and the High Court of Justice, or of the professors of law in universities who hold the rank of professor ; or of the lawyers who spent a period of not less than fifteen years in the practice of law; and of the specialists to whom the conditions of membership in the Senate apply.

Turkey: To qualify for appointments as members of the Constitutional Court, members of the teaching staff shall be required to possess the title of professor or associate professor; lawyers shall be required to have practiced as a lawyer for at least twenty years; high level executives shall be required to have completed higher education and to have worked for at least twenty years in public service, and first category judges and public prosecutors with at least twenty years of work experience including their period of candidacy, provided that they all shall be over the age of forty five.

Venezuela (Bolivarian Republic of) : To be a justice of the Supreme Tribunal of Justice, a person must: 1.Have Venezuelan nationality by birth. 2.Be recognized as an honorable citizen. 3.Be a jurist of recognized competence; enjoy a good reputation; have a minimum of 15 years experience practicing law and have a post graduate degree in law, or have at least 15 years experience as a university professor of law, having obtained the rank of full professor; or be or have been a superior court judge in the specialty of the division for which he is a candidate, having been a sitting judge for at least 15 years and gained recognized prestige in the performance of his duties.

Thailand: The Constitutional Court consists of nine judges of the Constitutional Court appointed by the King. One has to be qualified person in law obtained by selection from persons holding or having held a position of Professor of a university in Thailand for not less than five years, and currently having renowned academic work.

Panama: To have completed a ten year period of service either in the profession of lawyer or in a position in the Judicial Branch, the Public Ministry, the Electoral Tribunal, or the Office of Ombudsman for which a university degree in law is required, or to have been a professor of law at university level.

Dominican Republic: To have practiced the profession of lawyer or university professor of law for at leave twelve years, or to have exercised for the same time period the office of judge within the Judicial Power or of representative of the Public Ministry. These periods may accumulate.

Spain: Members of the Constitutional Court shall be appointed among magistrates and prosecutors, university professors, public officials and lawyers, all of whom must have a recognized standing with at least fifteen years' practice in their profession.

Mozambique: At the time of their appointment, Judges of the Constitutional Council shall be of at least thirty-five years of age and shall have at least ten years of professional experience in the judiciary or in practice at the bar or in teaching law.

Ecuador: To be designated member of the Constitutional Court, the following shall be required...To have practiced with notable rectitude the profession of attorney-at-law, judge or university instructor in law for a minimum often years

Italy: The judges of the Constitutional Courts shall be chosen from among judges, including those retired, of the ordinary and administrative higher Courts, university professors of law and lawyers with at least twenty years practice.


Constitutions Which Allow Jurists/Legal Experts to be Judges Of Apex Courts

Myanmar: The Chief Justice of the Union and Judges of the Supreme Court of the Union shall be a person of following qualifications: ...who is, in the opinion of the President, an eminent jurist;

Uganda: A person shall be qualified for appointment as a Justice of Appeal, if he or she has served as a Judge of the High Court or a court having similar or higher jurisdiction or has practised as an advocate for a period not less than ten years before a court having unlimited jurisdiction in civil and criminal matters or is a distinguished jurist and an advocate of not less than ten years standing;

Tunisia : The Constitutional Court is an independent judicial body, composed of 12 competent members, three-quarters of whom are legal experts with at least 20 years of experience.

Poland: The Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office.

Portugal: Six of the judges who are appointed by the Assembly of the Republic or are co-opted shall obligatorily be chosen from among the judges of the remaining courts, and the others from among jurists.

Croatia: The Constitutional Court of the Republic of Croatia shall consist of thirteen judges elected by a two-thirds majority of the deputies of the Croatian Parliament from among notable jurists, especially judges, public prosecutors, attorneys and university law professors pursuant to the procedure and method set forth by a constitutional act.


Hope President 'Finds' A Distinguished Jurist Soon

Judges (Inquiry) Act is a law to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a judge of the Supreme Court or of a High Court. This Act contemplates a committee to be formed to conduct investigation into misbehaviour or incapacity of Judge. One member of the three member committee shall be a person who is, in the opinion of, the Speaker of Lok Sabha or Chairman of Rajya Sabha, a distinguished jurist. If there has to be a 'distinguished jurist' to conduct an investigation against a judge, why should not a 'distinguished jurist' be made a judge to hear and decide important constitutional issues?

In its suggestions for improvement of the collegium system submitted before the Supreme Court, the Centre had stated that non-consideration of 'distinguished jurists' (experts in law) as judges of the SC despite the Constitution so mandating was wrong. It had also suggested to introduce specific criteria "for appointment of members of bar and distinguished jurists to the Supreme Court and special emphasis placed on appointing judges from these categories given their historic under-representation". 

We can only hope that the President of India will soon find a 'distinguished jurist'.



(Views are personal)



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