Why can’t jurists be judges

Article 124 of the Constitution describes the way in which appointments of judges to the Supreme Court are to be made.

There are three categories of persons who are qualified to be appointed as judges of the Supreme Court. These are: judges of the High Courts, advocates with at least 10 years of experience in the High Courts, and distinguished jurists.

In its 69 years of existence, the Supreme Court has not seen a single ‘distinguished jurist’ appointed as one of its judges!

Eminent jurist Prof Upendra Baxi lamented on this aspect, “for 50 long years, the constitutional provision which enables the elevation of a jurist to the Supreme Court of India has been consistently ignored. This has deprived India of its best prospect of conversion of a law professor into a Justice. The prospect of having our own equivalent of a Felix Frankfurter has been wilfully squandered.”

In the US, it has been a practice to appoint eminent jurists to the Supreme Court. For example, President Franklin Roosevelt appointed Felix Frankfurter to the Supreme Court in 1939. Frankfurter had previously taught at Harvard Law School for 25 years.

Among the present judges of the American Supreme Court, seven of the nine have been involved in academia at some point of their legal career. This is particularly noteworthy, given that US Supreme Court justices are associated with using rich philosophical deductions in shaping their judgements.

Two reasons

Nobody knows why, in a country having many distinguished jurists, not even one has so far been appointed to the Supreme Court of India. Academicians in the field of law surmise two broad reasons for this: first, the collegium has failed to bring in diversity; second, the law professors are completely into classroom teaching and their skills do not get noticed by the judiciary.

Let us look at the first reason. The power to appointment judges to the higher judiciary in India is vested with the collegium. The collegium is an “old boys’ club” and consists of the Chief Justice of India and the senior most judges of the Supreme Court.

The collegium system is nowhere envisaged in the Constitution. It was created by the Supreme Court on the pretext of protecting the independence of the judiciary. The collegium has ignored to consider the contribution of legal academicians and thereby failed to bring in diversity in the higher judiciary.

Secondly, full-time law teachers are not allowed to practice as advocates. This is as per the rules made by the Bar Council of India under the Advocates Act, 1961.

Due to this rule, law teachers are deprived of the opportunity to use their knowledge and skills in the courts. However, it must be noted that academics are independent, self-driven professionals. Since they are already enveloped in the study of law, they can use their skills beyond the classroom.

These restrictions have given rise to a situation where the gap between the ‘law in books’ (academia) and the ‘law in action’ (courts) has widened. The professors who teach in medical colleges are not barred from treating patients. In fact, they are actively involved in the medical profession.

Similarly, even law professors should be allowed to actively practice in the courts. Both medicine and law are professional courses and require the teachers to have practical exposure in order to be able to impart quality teaching to their students.

There are strong reasons why law teachers should be allowed to practice as advocates. There is much to gain from an integration of academia in the legal profession, particularly in matters of constitutional interpretation. Academics possess an arsenal of interpretative and analytical tools that can be of assistance to the court.

Additionally, academia is the place where voice is raised against injustices. Many professors are involved in social activism. Law teachers profess in their classrooms about fighting for justice. They should be given an opportunity to do so in the courts.

In February, the Consortium of the National Law Universities made a representation to the Bar Council of India to allow full-time law teachers to practice before the courts. This step, it felt, would go a long way to enable teachers to meaningfully contribute to the legal system.

Law teachers can take up cases of underprivileged groups and fight pro bono. When a fee is charged, the Consortium has suggested sharing of the fees with the institution at which the teacher works. There is a need for law teachers across the country to voice their opinion for their right to practice before the courts.

The University Grants Commission and the Bar Council of India should come together to bridge the gap between the legal profession and legal education.

Opportunity should be given to full-time teachers to practice before the courts and fight for justice for the needy. Such opportunity can pave the way for an eminent jurist to be appointed to the Supreme Court in the future.

(The writer is Assistant Professor of Law, SDM Law College, Mangaluru)