The judiciary must try to diversify the institution
There is a need to attract outstanding minds to the judiciary, many of whom can be from legal academia
The Supreme Court (SC) will be celebrating its 70th anniversary in 2020. It is a good time for our judiciary to consider diversifying the institution. While there has been a well argued case for a stronger representation of women in the higher judiciary, there have been fewer arguments made in relation to the inclusion of academics in the higher judiciary.
There are four reasons that justify the appointment of outstanding academic scholars as judges of high courts and the SC . These are: promoting institutional diversity; developing theoretical foundations of law; comparative judicial practices; and interdisciplinary approaches in law and justice. Even the constitutional provision that provides the constitutional basis for appointing a law professor as a judge of the SC uses a vague phrase: “a distinguished jurist”. India must contemplate a constitutional amendment to expand the pool of potential candidates that the collegium comprising three senior most SC justices may examine for elevation to high courts.
Law professors are appointed to the higher judiciary in many countries. During the drafting of our Constitution, it was stressed by the Constituent Assembly member, HV Kamath, that there was no point restricting the pool of candidates to judges and lawyers. Kamath wanted to “widen the field of choice” to include law professors to be considered for appointment to the SC. His amendment was adopted and the phrase “distinguished jurist” was included in article 124(3). But how many law professors have been appointed under the “distinguished jurist” clause? None.
What is the potential pool of candidates from which the SC collegium considers for elevation as justices of high courts and the SC? For high courts, article 217(2) provides two categories: those who have held “judicial office” in India for at least 10 years, and those who have been an “advocate of a high court” or two or more high courts for at least 10 years. For the SC, article 124(3) provides three categories: those who have been a judge of one or more than one high court for at least five years; those who have been an advocate of one or more than one high court for at least 10 years; and those who are in the opinion of the President a “distinguished jurist”. Theoretically, a law professor can be appointed to the SC under the “distinguished jurist” clause. But why should appointment of a law professor be restricted to the SC only? Can they be considered for high courts? No.
The Article 217(2) itself makes it impossible for a law professor to even be considered for elevation to the high court. The professor must give up her academic work and join the Bar and practise law for several years before she can be considered. Anyone who has seriously pursued the academic legal profession knows that this is an impossibility. For a dedicated academic, that is a very difficult position to be in. But the law professor is also not alien to the task of being a judge. She is routinely engaged in researching in law, interpreting statutes and analysing law and judgments, judging moot courts where she has to assess the quality of the written arguments, legal research, and oral arguments of law students. We need a constitutional amendment in article 217(2). Though more than a constitutional amendment, we need a paradigm shift in the mindset of the SC collegium. There is a grave need for attracting outstanding minds into the judiciary, many of whom can be from the legal academia.