Justice Ujjal Bhuyan of the Supreme Court raised concerns on Sunday regarding the constitutional provision for appointing a “distinguished jurist” to the apex court, which has not been utilized in over 76 years. He suggested that this lapse may indicate a failure on the part of both the Centre and the judicial collegium to recognize the depth of expertise within Indian legal academia, or a lack of serious exploration into this potential avenue for judicial appointments.
Yet, he noted, no legal academic has so far been appointed to the top court. He also pointed to jurisdictions such as the US, UK, Canada and Kenya where academics have been appointed to constitutional courts. In the US, he noted, several Supreme Court judges, including Frankfurter, Antonin Scalia, Ruth Bader Ginsburg and Stephen Breyer, had teaching backgrounds. In the UK, former Supreme Court president Lady Hale and Justice Andrew Burrows were among those with substantial academic careers before their judicial appointments.
Addressing the 13th convocation of the National Law University, Delhi’s LL.M. programme, the top court judge said that Article 124(3) of the Constitution expressly provides for the appointment of a person who, in the President’s opinion, is a “distinguished jurist” as a Supreme Court judge. He said the Constituent Assembly had consciously envisaged academics and jurists as part of the Supreme Court, pointing to the debates in which HV Kamath and M Ananthasayanam Ayyangar supported widening the field beyond judges and advocates. Ayyangar had suggested that a “distinguished jurist” could be a law professor or dean of a university faculty, while citing the appointment of Harvard professor Felix Frankfurter to the US Supreme Court as an example. Justice Bhuyan rejected as “very shallow” the argument that legal academics lack the practical experience necessary to become judges. The Supreme Court, he said, was not merely the country’s highest adjudicatory body but its “moral, legal and constitutional conscience keeper”, and the inclusion of distinguished jurists was intended to diversify the Bench and bring academic scholarship to the highest level of judicial decision-making.
The Supreme Court, hearing a challenge to the BCI’s action, strongly questioned the intervention, with CJI Kant observing that students had a right to peacefully protest and questioning what business the BCI had in intervening in what he described as a dialogue between the students and him. Close on the heels of these developments, Justice Bhuyan underlined that constitutional democracy required institutions to accommodate differences rather than treat every dissent as a threat.
“The freedom to express an opinion, to disagree with the prevailing view and to participate in public life would be meaningful only when there is space for dissent,” he said. The judge described tolerance not merely as a matter of courtesy but as a constitutional value, citing Justice O Chinnappa Reddy’s observation in Bijoe Emmanuel that “our Constitution practises tolerance”. A democracy’s maturity, Justice Bhuyan said, was reflected not merely in how it treated popular opinions but in how it responded to views that were “difficult, unpopular or inconvenient”.
