Article 124(3) and the Unused Route to the Supreme Court

Article 124(3): An Unused Constitutional Route

Article 124(3) and the Unused Route to the Supreme Court: More than 76 years after the Constitution came into force, the provision under Article 124(3) allowing a “distinguished jurist” to be appointed directly as a judge of the Supreme Court has never been used.

Speaking at the 13th convocation of National Law University Delhi on August 30, 2026, Supreme Court judge Justice Ujjal Bhuyan described the provision as an “unused mandate” requiring serious consideration. He argued that bringing distinguished legal scholars and academics into the Supreme Court could diversify the Bench and strengthen its ability to deal with constitutional and public-law questions.

Static GK fact: Article 124 deals with the establishment and constitution of the Supreme Court of India.

Three Routes to the Supreme Court

Under Article 124(3), a person must be an Indian citizen and qualify through any one of three routes:

1. Have served as a High Court judge for at least five years.
2. Have been an advocate of a High Court for at least ten years.
3. Be, in the opinion of the President, a “distinguished jurist.”

The first two routes have traditionally been followed. Most Supreme Court judges are elevated from the High Courts, while some are appointed directly from the legal profession. The third constitutional route has never been exercised.

Static GK Tip: The phrase “distinguished jurist” is not defined in the Constitution, leaving considerable scope for interpretation.

Why Was the Jurist Route Introduced?

The idea emerged during the Constituent Assembly debates on May 24, 1949.

H.V. Kamath argued that appointments should not be restricted only to judges and practising advocates. He favoured allowing persons with outstanding legal and juristic knowledge to become Supreme Court judges even if they had never practised in court. He referred to the International Court of Justice (ICJ) as an example of a judicial institution benefiting from broader legal expertise.

1. Ananthasayanam Ayyangar supported the proposal, noting that practising lawyers may not necessarily encounter the complex constitutional and public-law issues regularly considered by a constitutional court.

Dr B.R. Ambedkar did not oppose the principle. His concern was mainly about the terminology, particularly whether “distinguished” was the appropriate description. The provision was ultimately incorporated into the Constitution.

Who Can Be a Distinguished Jurist?

The Constitution does not prescribe a precise definition. In a broad sense, a distinguished jurist could be someone possessing exceptional expertise in legal scholarship, teaching, research, jurisprudence or legal practice.

This could potentially include eminent legal academics who have made significant contributions to constitutional law or jurisprudence but lack extensive courtroom experience.

However, an institutional difficulty exists. Bar Council rules generally restrict full-time law teachers from simultaneously practising law. Therefore, highly accomplished academics may not have the litigation experience traditionally associated with judicial appointments.

Why Has Article 124(3) Remained Unused?

Several explanations have been suggested for the non-use of this constitutional route.

First, successive governments and subsequently the judicial collegium may have believed that suitable candidates with sufficient distinction had not emerged from Indian legal academia.

Second, the provision may simply not have received serious institutional consideration.

A further complication comes from the present collegium system. Although Article 124(3) refers to the President’s opinion, contemporary Supreme Court appointments are initiated through the Supreme Court collegium. Therefore, a distinguished jurist would ordinarily need to be identified and recommended through the existing judicial appointment process before the government processes the appointment.

Why Revive the Provision?

Justice Bhuyan’s argument is not merely about expanding the pool of potential judges. A distinguished jurist could potentially:

• Diversify the composition of the Supreme Court Bench.
• Bring deeper expertise in constitutional and public law.
• Introduce perspectives developed through legal research and scholarship.
• Enrich judicial reasoning beyond narrowly technical questions.
• Strengthen the Court’s capacity to address increasingly complex constitutional, institutional and socio-legal issues.

Thus, Article 124(3) could provide a constitutional mechanism for bringing specialised legal knowledge into India’s highest court.

The Institutional Challenge

The central question is not simply whether India has eminent jurists. It is how such jurists should be identified and appointed.

The absence of an accepted definition of “distinguished jurist”, combined with the dominance of the collegium system, creates uncertainty regarding:

• Who qualifies as a distinguished jurist?
• Who should identify suitable candidates?
• What criteria should be applied?
• How can merit and judicial independence be protected?

The reported consideration of legal scholar Upendra Baxi for judicial elevation, without his eventual appointment, illustrates how the jurist route has remained largely theoretical.

Static GK Tip: Article 217 deals with the appointment and conditions of office of High Court judges. A similar “distinguished jurist” provision for High Courts was introduced through the 42nd Constitutional Amendment Act, 1976, but was removed by the 44th Constitutional Amendment Act, 1978.

Significance for Indian Judiciary

The debate over Article 124(3) raises a broader question about the composition of constitutional courts. While judicial experience and courtroom expertise remain important, constitutional adjudication increasingly involves questions involving governance, technology, institutional design, socio-economic rights and public policy.

Activating the jurist route could therefore widen the intellectual diversity of the Supreme Court. At the same time, transparent eligibility criteria and an accepted appointment mechanism would be essential to prevent uncertainty and preserve judicial independence.

Static Usthadian Current Affairs Table

Article 124(3) and the Unused Route to the Supreme Court: