Can a constitutional court be truly complete if one category of legal talent expressly recognised by the Constitution has never entered its highest judicial chamber?

That question has returned to the centre of India's judicial debate after Supreme Court Justice Ujjal Bhuyan questioned why the country has never appointed a “distinguished jurist” to the Supreme Court, despite the Constitution expressly creating that route more than 76 years ago.

Speaking at the 13th convocation of the National Law University, Delhi's LL.M. programme, Justice Bhuyan pointed to Article 124(3), which provides three alternative constitutional routes to eligibility for appointment to the Supreme Court: a person with the requisite High Court judicial experience, a person with the requisite experience as an advocate, or a person who is, in the President's opinion, a “distinguished jurist.” Yet, he noted, the third category has never produced a Supreme Court judge.

The question is bigger than a missing category in a constitutional provision. It raises a fundamental issue about how India defines judicial talent — and whether its appointment system has gradually become dominated by conventional career pathways at the expense of academic and juristic scholarship.

A Provision Born From a Deliberate Constitutional Choice

The absence of a distinguished jurist from the Supreme Court is particularly striking because the category was not inserted accidentally.

During the Constituent Assembly debates, member H.V. Kamath argued that the field for selecting Supreme Court judges should be wider than serving judges and practising lawyers. He proposed adding “distinguished jurist” as an alternative qualification.

M. Ananthasayanam Ayyangar supported the idea and argued that constitutional courts sometimes confront questions requiring deep jurisprudential understanding. He specifically pointed to law professors, university deans, eminent legal writers and scholars as potential sources of judicial talent. The discussion even invoked Felix Frankfurter, a Harvard Law professor who was appointed to the US Supreme Court in 1939.

The underlying idea was simple: legal brilliance does not necessarily come only from the courtroom.

The Constituent Assembly ultimately accepted the amendment, and Article 124(3)(c) became part of the Constitution.

But India's subsequent history took a very different path.

The Judiciary Built a Career-Based Pipeline

For much of the Supreme Court's history, appointments have predominantly come from two established pipelines — High Court judges and senior advocates.

That pattern has practical advantages. High Court judges already have judicial experience, while senior advocates bring extensive courtroom exposure and knowledge of litigation.

But it also creates a structural problem for academics.

A professor who spends decades researching constitutional law, jurisprudence, comparative law or legal theory may possess extraordinary intellectual credentials but may never develop the traditional judicial career profile that has historically made someone visible to the appointment process.

In other words, the Constitution created three doors, but institutional practice overwhelmingly used two.

Research on the issue has repeatedly noted that no Supreme Court appointment has been made under Article 124(3)(c).

The Collegium Changed the Equation

Another important piece of the puzzle is the transformation of India's judicial appointment system.

Article 124 originally provided for presidential appointments after consultation with judges. But the meaning of “consultation” evolved dramatically through the Judges Cases.

In the First Judges Case of 1981, the Supreme Court held that consultation did not amount to concurrence and that the executive retained primacy.

The Second Judges Case in 1993 fundamentally altered that position by giving primacy to the Chief Justice of India and establishing the collegium approach.

The 1998 Presidential Reference, commonly associated with the Third Judges Case, expanded the Supreme Court collegium to the CJI and four senior-most judges.

This history matters because the constitutional language of Article 124(3)(c) refers to a person who is, in the President's opinion, a distinguished jurist, while the modern appointment process operates through a judicially evolved collegium system.

That creates an obvious practical question: Who identifies the distinguished jurist?

And perhaps more importantly, what objective standards should determine who qualifies?

The Constitution does not provide a detailed definition.

What Exactly Is a “Distinguished Jurist”?

This may be the biggest obstacle.

There is no constitutional checklist saying that a distinguished jurist must have a certain number of years as a professor, a particular number of published books, landmark academic contributions or international recognition.

That flexibility was arguably deliberate. The framers wanted to keep the field open.

But flexibility can also create uncertainty.

Should a distinguished jurist be:

• A constitutional law professor?
• A leading legal philosopher?
• A scholar whose research influenced legislation?
• An internationally recognised comparative-law expert?
• A former law commission member?
• A legal academic with decades of teaching and research?
• A person whose writings have significantly influenced Indian constitutional interpretation?

Without an accepted institutional definition, identifying candidates becomes considerably more difficult.

India Has Had Eminent Legal Scholars

The absence of appointments does not mean India has lacked eminent jurists.

Over the decades, the country has produced internationally respected legal scholars and constitutional thinkers. Names such as Upendra Baxi, N.R. Madhava Menon, S.P. Sathe and P.K. Tripathi have appeared in discussions about the unrealised possibility of bringing academic legal expertise directly into constitutional courts.

Professor Upendra Baxi himself famously questioned the absence of academic appointments and argued that India had effectively failed to realise the constitutional possibility of transforming an outstanding law professor into a Supreme Court judge.

That makes Justice Bhuyan's question especially significant.

The debate is not simply about whether India has produced jurists. It is about whether the appointment architecture has created a mechanism capable of identifying and evaluating them.

Even Direct Bar Appointments Remain Rare

India's record with senior lawyers directly entering the Supreme Court also shows how conservative the traditional pipeline has been.

In 2021, senior advocate P.S. Narasimha became the ninth lawyer to be appointed directly from the Bar to the Supreme Court. Earlier direct appointments included judges such as S.M. Sikri, Kuldip Singh, Santosh Hegde, Rohinton Nariman, U.U. Lalit, L. Nageswara Rao and Indu Malhotra.

If direct appointments from the Bar themselves have been relatively uncommon, bringing someone from a completely academic background represents an even greater departure from established practice.

The Gopal Subramanium Episode Shows the Complexity

The history of Supreme Court appointments also demonstrates how difficult the selection process can become even for highly accomplished legal professionals.

In 2014, former Solicitor General Gopal Subramanium's name was recommended by the Supreme Court collegium. The government returned his recommendation for reconsideration while clearing the names of other candidates. Subramanium subsequently withdrew his consent to be considered.

That episode concerned a senior advocate rather than an academic, but it illustrates a larger reality: Supreme Court appointments involve questions of suitability, institutional confidence, background, independence and competing assessments of merit.

For a distinguished jurist who has never served as a judge or spent a conventional career at the Bar, those questions could become even more complicated.

Why Has the Provision Remained Unused?

There is no single officially established explanation for the 76-year absence of appointments under Article 124(3)(c).

Several factors may have contributed.

First, India's legal culture has historically placed enormous value on courtroom and judicial experience.

Second, the modern collegium system developed around assessing candidates whose work could be observed through judgments and litigation.

Third, the phrase “distinguished jurist” has never acquired a universally accepted operational definition.

Fourth, academic careers and judicial careers follow very different trajectories.

And finally, there may simply have been insufficient institutional effort to build a serious pipeline of academic candidates precisely the concern Justice Bhuyan has now raised.

These should be understood as structural explanations rather than a formally stated reason from the Supreme Court or government.

The Question Now Is Whether India Should Open the Third Door

Justice Bhuyan's intervention comes at an important moment.

India's constitutional challenges are becoming increasingly complex. Questions involving artificial intelligence, digital privacy, climate change, biotechnology, platform regulation, international trade, data governance and emerging technologies require judges to understand not only precedent but also rapidly developing bodies of knowledge.

A distinguished academic could potentially bring a different form of expertise to the bench.

That does not mean courtroom experience is less valuable.

The real question is whether India's highest court should have both — experienced judges and advocates alongside exceptional legal scholars.

The framers of the Constitution deliberately left that third door open.

For 76 years, India has largely chosen not to walk through it.

Justice Bhuyan's question therefore goes beyond the appointment of one individual.

It asks whether India's judicial system has fully used the constitutional imagination of its founders — and whether, after more than seven decades, it is time to reconsider what the phrase “distinguished jurist” should mean in the world's largest democracy.

The answer could determine whether India's Supreme Court remains a court shaped almost exclusively by judicial and courtroom careers, or evolves into a broader institution drawing upon the full intellectual depth of the country's legal community.