Overview
Article 124 of the Indian Constitution which establishes the Supreme Court has multifaceted layers. Art. 124(3) is the one, specifically under consideration in this article. It outlines the qualifications required to be a Supreme Court judge. As per this provision, the person must be a citizen of India and fulfil at least one of the three requisites.
- Must be a High Court judge or two or more such courts in succession for at least five years (Art. 124(3)(a))
- Must be an advocate at the High Court or two or more such courts in succession for at least ten years (Art. 124(3)(b))
- Must be a distinguished jurist in the President’s opinion (Art. 124(3)(c))
Practical Application Of Art. 124(3)
The first two ways have been used multiple times to appoint a judge, but the real controversy lies with the third method. It had been invoked to give an opportunity to those talented persons who are not judges. But surprisingly, Article 124(3)(c) has never been used in the history of Supreme Court. This becomes a very crucial point, especially in India’s judicial and executive scenario.
There are two main research questions in my analysis:
- Have there been any initiations or discussions in the past to appoint someone using this provision?
- If yes, what stops the President from using this provision in spite of its wide scope?
Past Initiations
There have been multiple discussions in the past to invoke a judge through the third method, yet, it didn’t work in any case. Two such legal scholars are mentioned:
- Upendra Baxi
There was once a very serious consideration about elevating Mr. Baxi to the Supreme Court as a judge. This initiation was made, keeping in mind his high legal intellect, though he was a legal scholar and academician and not a judge. As per certain sources, Justice P.N. Bhagvati had himself told a foreign professor about this advancement. Yet, this could never be done. While no reasons were ever made official, it seems that the vagueness of the term “distinguished jurist” could be a possible reason as to why he was not appointed. The lack of mentioning of “proper qualifications” might have forced this decision. Moreover, the President works as per the aid and advice of the Council of Ministers. It could be also be a possible aspect that the appointment of Mr. Baxi would not have benefitted the government due to his differing political ideologies. He is a critique of how State uses laws to cover up their own monopoly. These could be some possible reasons of his non-appointment through Art. 124(3)(c).
- Tahir Mehmood
Another person was Tahir Mehmood who came close to being the Supreme Court judge but yet, could not be appointed through this method, owing to the same vagueness of term. Currently, he is working in Amity University, under the Designation of “Distinguished Jurist Chair, Professor of Eminence and Chairman, Institute of Advanced Legal Studies”.
Possible Reasons For Non-Usage Of Art. 124(3)(C)
- Vagueness of the term “distinguished jurist”:- Through the case study mentioned, it is quite clear that the ambiguity of this term leads to a position where the required threshold of qualifications is undeterminable and hence, it brings confusion.
- Bias Allegations by the Opposition:- Even when the NJAC was in operation, the government hesitated to use this third method. This connects to the first reason of vagueness, which could leave a loophole for the Opposition to criticise and attack the government over being biased towards the ones who could favour their party. The absence of required qualifications provide an open ground for the Opposition to criticise.
- Revival of the Collegium system:- After the striking down of NJAC and revival of collegium, chances of usage of this provision further pushed down. This is because the power has now slipped off the executive in the collegiums era, who could directly control such appointments in the NJAC era.
- Preference for experienced judges:- Another possibility is that the Supreme Court requires judges who could understand every aspect of the cases coming to it. This means courtroom exposure is given much more importance than mere legal knowledge.
Can It Come In Use If Njac Returns?
Theoretical Possibility:- The newly appointed Chief Justice of India Surya Kant has signified that he is ready to consider the plea to revive NJAC and replace the collegium. Considering his tenure of 1.5 years, this opens up a theoretical possibility of its usage. Also, NJAC consists of two “eminent members”, much similar to Art. 124(3)(c).
Practical Possibility:- If the same NJAC returns with no reforms in this Article, it paves way for the government to use this Article in its favour. But, the government might not look to take such a big risk and hold a threat to its rule. It could not be practically used, unless some reforms are made.
How Can Practical Possibility Be Facilitated?
- Revival of NJAC-type model:- An NJAC-type model, if brought back, could place the power yet again at the hands of the executive, who could then use this third method of appointment with utmost sincerity, provided the next criteria mentioned is fulfilled.
- Removal of vagueness through Amendments (Reforms):- The most important reform needed is a “Threshold level of Qualifications”. What should be the minimum level of qualifications needed for being appointed through Art. 124(3)(c), this question should be answered by way of an amendment.
- Enhanced transparency and accountability:- The resolutions of “Who was elected”, “Why did the President find him distinguished”, “Did he meet the required qualifications” should all be duly published in the online Supreme Court website. If such level of enhanced transparency and accountability can also be met, this method can come into regular usage.
Conclusion
Through my analysis, one clear fact comes into picture that Art. 124(3)(c) has a much wider scope, limited through its non-usage. Its inclusion signifies that it was much ahead of its time. The past initiations have shown that there was a clear interest of the executive to use this provision but it was limited due to its ambiguity and the high-risk consequences that would have followed. Certain reforms, if brought, could bring about a perfect balance between its effective usage and avoid misuse.
Author Name- Laksh Walia, 1st year Law Student, B.A. LL. B, National Law University, Odisha.
