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Distinguished Jurist: A Tale of a Failed Constitutional Experiment           

Rabindra Kr. Pathak

Setting the Stage

Jurist is a word of lexical ambiguity evoking many a forensic imagery. Every lawman is well acquainted with this invisible yet omnipresent creature, very much like the reasonable man of the common law. Indian constitution gives due recognition to “jurist” under article 124 without defining it. But this has given rise to a multitude of predicaments, foremost one being: who is a jurist? Answer to this question may well address many other ancillary riddles. The wide conceptual canvass of the term makes it a tad difficult to decipher the import of what it exactly implies. A layman’s understanding of the term “jurist” is bound to be different from that of a lawmanreason being a journalistic appreciation of the term as we find in newspapers and electronic media. Can anyone who has been associated with law be assigned the tag of “jurist”? What does the term, constitutionally speaking, imply? Present paper tries to explore such other questions, and the constitutional ripples the expression seemingly creates in view of its continued ignorance.

Jurist: A Semantic Sojourn

“The word ‘jurist’ is much debased in India; we have developed a tradition where knowledge, virtue and even wisdom come ex officio, to a point that every judge, sitting or retired, every attorney and Advocate General, other law officers, chairpersons of Bar Council   and Associations, law ministers, senior members of the Bar, and even their leading munshis, are described as ‘jurist’!”.[i] It is this misuse or overuse that has added to the ambiguity of the term. Be that as it may, Baxi defines jurist as one who seeks to usher in the jurisprudence of fresh start(s’) or as today most of us would name, perhaps, too readily as an ‘epistemological break.[ii] They are essentially “legal experts, and they belong to eras in the development of the law in which a special class of experts exercise a predominant influence upon the evolution of the law.”[iii] Stone describes a jurist as a “secular man learned in law”.[iv] “In England, this word is reserved for those having made outstanding contributions to legal thought and legal literature. In the US, it is rather loosely applied to every judge of whatever level, and sometimes even to non-scholar practitioners who are well respected.”[v] According to Allen, however, the “expression is not confined to ‘jurists’ in the sense of learned writers upon legal topics; it includes all those whose special function is to expound and apply customary law.”[vi] He cites example of ancient societies where the expression would comprise “semi-fabulous code-makers and law-givers.”[vii] Historically, to use the words of Allen, the very word ‘jurists’ suggests “that remarkable group of men who, during the first two centuries of the Roman Empire, built an imperishable legal document.”[viii] The period of classical jurists ran from the first century BC to the middle of the third century AD.[ix] Jurist was the central figure in the Roman Legal System, since statute law was relatively unimportant in the private law, and neither magistrate nor judge was necessarily or normally learned in law. The jurist influenced the law at every point.[x]  The Roman jurists were not judges, and their involvement in adjudication was very indirect. Jurists were individuals of high social rank who devoted themselves to the study, exposition and analysis of private law.

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Constituent Assembly Debates

H V Kamath had moved the amendment for the addition of jurist-clause to article 124. He observed in the constituent assembly that “amendment of mine is based on the provision relating to the qualifications for judges of the International Court of Justice at Hague.”[xi]  Thus began the story of jurist provision under the Indian constitution. However, it does entail one simple yet important question: What is the meaning of the word ‘jurist’ that the constitution envisages under article 124 of the constitution?  To make the ambiguity surrounding the word “jurist” even more impenetrable, the framers used the word “distinguished”, making the entire expression a qualified criterion for appointment of a judge. We need to determine in what sense was the expression “distinguished jurist” used under the constitution when the framers of the Indian constitution were deliberating over inclusion of the expression. During the Constituent Assembly Debates, H V Kamath moved “a little amendment to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court.”[xii] The proposed amendment was for the inclusion of a “distinguished jurist” as one of the criteria for being appointed as a judge of the Supreme Court. Kamath said:[xiii]

I am sure that the House will realize that it is desirable, nay, essential to have men—or for the matter of that, women—who are possessed of outstanding legal and juristic learning. In my humble judgment, such are not necessarily confined to Judges or Advocates

He found support in M Ananthasayanam Ayyangar.[xiv] It should, however, be pointed out here that Ambedkar had some reservations as to the use of the word “distinguished”. One of the suggestions made to him was to use the word “eminent” instead. Unable to make up his mind on the use of proper word, he left it to the Drafting Committee to decide “whether it would accept the word “distinguished” or substitute “eminent” or some other suitable word.”[xv]  Be that as it may, one of striking and notable features of the debates was the conspicuous absence of any discussion as to who was to be regarded as a jurist. There seems to have been an uncontested and implied consensus among the members of the Assembly as to the meaning of “jurist”. While framers clearly spelt out who among the judges and advocates were to be considered suitable for being appointed as a judge of the Supreme Court, no such criteria was formulated to identify the “distinguished” among the jurists, a term left undefined by the framers.

‘Jurist’ under Indian Constitution: Definitional Contours

Preceding discussion indicates  that a “jurist” in the context of article 124(3) implies a legal expert[xvi], having outstanding legal and juristic learning[xvii] , who may not necessarily be judge or advocate, and may be some eminent person or writer[xviii] or an academic lawyer given the fact that one of purposes behind inserting “jurist” under article 124 was to have a “wider field of choice” which implies that framers by using the expression “distinguished jurist” intended to refer to legal experts other than advocates and judges. A careful reading of article 124 shows quite clearly that requirements for a judge  or   an advocate are  explicitly mentioned therein, and therefore  the expression “distinguished jurist” was intended to cover people other than judges and advocates. That is, such a meaning seems apparent when we try to infer the import of the word “jurist” in the context of article 124 of the constitution, notwithstanding the literal meaning of the term. As Gadbois, Jr.  argues that “No definition of “distinguished jurist” is offered, but the framers evidently intended such persons or eminent law professors who failed to meet one of the first two criteria.”[xix]

As to the expression, the fuzzy ambiguity of the expression used in the above article suffered a “semantic twist” when the word distinguished was used to signify the suitability of the person who would be appointed as a judge. However, a jurist is a jurist. How is it to be decided that a jurist is a distinguished jurist?  It is as difficult to decide who a “distinguished jurist” is as is the task of defining who is a jurist, especially in India.[xx] It is submitted that framers of the constitution could have avoided using the word “distinguished” as it seems mere ornamental and devoid of any true intent. Maybe, it was one of the reasons that Ambedkar was not comfortable with the idea of using the word “distinguished”.[xxi] Be that as it may, Dhavan interprets the distinguished jurist clause as including “any person who can look at India’s problems taken as a whole” and that it means “a particular class of people who have what might be called a quality of “judicial statesmanship.” These are people who can rise above the ethnocentric insularity of their disciplinary or professional biases.”[xxii]

Does High Court not need a jurist?

Prof Shibban Lal Saksena during the constituent assembly debates moved an amendment for the inclusion of a provision providing for the appointment of “distinguished jurist” as a judge in the High Courts. He said: “When we have already made this provision in the case of the Supreme Court, I do not see any reason why we should not provide that a distinguished jurist should be appointed as a judge of the High Court also.”[xxiii]It was through the forty second amendment to the constitution that it was finally provided that a jurist shall be eligible for appointment as judge of the High Court. One of the seeming reasons behind such a constitutional move may have been the thinking that experience gained at the High Court would be helpful to the jurist-judge when she is finally appointed to the Supreme Court. The constitutional life of the provision was, however, cut short through forty-fourth amendment to the constitution in 1978. It was one of the noble constitutional spin-offs of an otherwise well despised emergency period while its deletion remains an unaccounted ambiguity of the constitutional history of India.  It has been pointed out that “because it was brought in by the 42nd amendment during emergency and the 44th amendment was largely meant to undo the changes made by the 42nd. No reasons were given by either case.”[xxiv]

Basu commenting on the removal of Sub-clause (c) of article 217(2) writes: “Logically the omission of sub-clause (c) from article 217(2) after having once inserted it by amendment would show that it is deliberate, and suggests that a distinguished jurist is a misfit for the high Court though eminently fit for the Supreme Court.”[xxv] High Court along with the Supreme Court is the only court entrusted with the jurisdiction to interpret the constitution, and therefore, there are reasons enough to look askance as to ability of a judge to decide   constitutional cases when he has “no pole-star of jurisprudence to guide him, (and when) he is most likely to drift in a turbulent sea.”[xxvi] A judge who has no sure foundation of constitutional jurisprudence would fail to perform the primary function of a judge of a superior court.[xxvii]

Why we need jurists as judges?

It is interesting to note that in the draft constitution, there was no provision for the appointment of non-practicing lawyers as judges of the Supreme Court. It was during the consideration stage of the draft that the provision for a distinguished jurist was included.[xxviii] One of the apparent reasons put forth was that it would enable the Supreme Court to get the benefits of the talents of distinguished non-practising lawyers.[xxix] A non-practising lawyer-judge, it has been argued, might be in a better position, because of his breath of outlook and freedom from a narrow and technical approach to law, to deal with the problems of public law.[xxx] Basu believed that “infusion of academic jurists of the right order into the highest tribunal may lead to its enrichment.”[xxxi] He quotes Justice Frankfurter who once said: “One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.”[xxxii] Though he concedes that it may not be “literally” true of India, he makes a noteworthy point when he says:[xxxiii]

For the highest tribunal of the land, a solid foundation of the highest juristic principles is no less important than mature experience of the procedure in Courts….the superior Judiciary in both France and West Germany is recruited exclusively from academic jurists, having no prior judicial experience at all.

In the United States of America, judges of the Supreme Court come from all walks of life as Article III, Section 1 says nothing about the qualification of judges or mechanics of choice.[xxxiv] A Supreme Court judge can be foreign born or wholly without legal experience or training.[xxxv] It is noteworthy that some of the greatest judges of the American Supreme Court had no judicial experience before they became judges. Judges like Marshall, Story, Taney, Hughes, Brandeis, and Frankfurter are some of them.[xxxvi] Of them all, it will not be out of context to be reminded of the background that Marshall had, a judge about whom James A Garfield once said “Marshall found the constitution paper; and he made it power.”[xxxvii]  The “meagerness of his education and training both generally and in law itself”[xxxviii], is very surprising considering the heights he reached in law eventually. His formal schooling consisted of a year under the tuition of a clergyman, as well another under a tutor who resided with the family.[xxxix] His study for the bar was also equally rudimentary.[xl]

All this goes to show one thing: the argument that a jurist lacking procedural expertise is not suitable for being appointed as a judge of the Supreme Court, does not hold much water. Arguendo, even if out of the 25 judges of the Supreme Court, few are academic lawyers lacking expertise of the procedural knowhow of court proceedings, their contribution to the cause of justice will be far greater compared to the loss the Court may have to suffer because of their lack of proper understanding of procedural laws. A judge who has a greater command over juristic aspects of law is bound to be far better a judge vis-à-vis other judges, and as regards the procedural aspect of court proceedings, a jurist before being appointed as a Supreme Court judge may be required to spend some time in high courts as it will take care of the incapacity arguably caused because of not having much depth in procedural law. Once it becomes a normal constitutional practice to appoint jurist as judges of the Supreme Court, it will be open for the Supreme Court to make rules under article 145 of the Constitution providing for the inclusion of a jurist as least in cases involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing of any reference under article 143 of the constitution given the fact that the word “including” used in article 145 indicates that the list provided therein is not exhaustive. The point raised deserves attention in view of the observation that the “power to make rules (under article 145) is in aid of the power of the Supreme Court, under article 142, to make such rules as is necessary for doing complete justice in any cause or matter pending before it.”[xli]

Conclusion

Surprisingly, art.124 (3) (c) has been forced to be one of the “silences” of the constitution. Even the judicial decisions while dealing with the questions of appointment of judges have constantly been ignoring the above provision, regardless of the advantages the judiciary, and the legal system, stand to gain. There are only occasional and mere passing references. At a time, when the judiciary, especially the Supreme Court, requires more competent and suitable judges, utilization of the provision would have infused a new life and vigour to an already over-burdened judicial system. Continued ignorance of the jurist-provision under the constitution is reflective of a deep-rooted constitutional crisis. It shows class hegemony of those who believe in maintaining status quo, for reasons variedly debated, though best known to them, or maybe as Basu prophecies, one ofthe reasons behind the apathy towards not appointing “jurists” as judges may be that “it is a new experiment in India”[xlii] and that it will take some time and effort before some appointments are made on the basis of above criterion. But it seems, in view of the developments that have taken place since the adoption of the provision that the experiment has failed.


 

References

[i] Upendra Baxi laments the use of the word “jurist” in India the way it is used. See, Upendra Baxi, “Remembering Justice Hidayatullah”, (1993) 1 SCC (J).

[ii] Upendra Baxi ‘Revisiting Social Dimensions of Law and Justice in a Posthuman Era’, 2007 (1) Law, Social Justice & Global Development Journal (LGD), available at https://www.go.warwick.ac.uk/elj/lgd/2007_1/baxi

[iii] A W B Simpson, “Lord Denning as Jurist” in J L Jowell and JPWB McAuslan (Ed), Lord Denning: The Judge and the Law 442(2008, Indian Reprint) Emphasis added.

[iv] See, Julius Stone, Social Dimension of Law and Justice 126-128(Indian reprint 1999). According to him, jurist class emerged after the rise of the political class and the fall of the priestly monopoly.

[v] Bryan Garner, A Dictionary of Modern Legal Usage 324(1987)

[vi] CK Allen, Law in the Making 112 (1997, Indian Reprint)

[vii] Ibid.

[viii]Supra note  6 at 116

[ix] See, Patrick Glenn,Legal Traditions of the World 130 (2004)

[x] NGL Hammond & H H Scullard (Ed), The Oxford Classical Dictionary 570(1973).  “…when in the sixth century, Justinian undertook his great compilation, it was chiefly to jurists long dead and gone that he went for the wisdom of the law.” C K Allen, Aspects of Justice77(1997, Indian reprint)

[xi]  CAD, 24th May 1949 at 241.

[xii] CAD, 24th May, at 241.

[xiii] Ibid. Emphasis added.

[xiv] Emphasis added. He said: “There are many eminent persons, there are many writers; there are jurists of great eminence. Why should it not be possible for the President to appoint a jurist of distinction, if it is necessary? As a matter of fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation.” CAD, 24th May at 254.

[xv] CAD, 24th May, at 257-8

[xvi] Supra note 2

[xvii] Supra note 11

[xviii] Supra note 12

[xix] George H Gadabois, “Indian Supreme Court Judges: A Portrait”,Vol. 3, No. 2/3, Law and Society Review  (Nov. 1986—Feb 1969) at 318

[xx] See, Supra note 1.

[xxi] Supra note 13

[xxii] Rajiv Dhavan, Justice on Trial 80(1980)

[xxiii] See, CAD, 7th June, 1949 at 662.

[xxiv] Based on the communication the author had with Subhash C Kashyap.

[xxv] D D Basu, Commentaries on the Constitution of India, Vol. H  238 (1990)

[xxvi] Id. at 239

[xxvii] Supra note 23

[xxviii] M P Singh, V N Shukla’s Constitution of India 414(2001)

[xxix] Ibid.

[xxx] MC Whinney, Judicial Review (1969) , as quoted in  MP Jain, Constitutional Law of India 197 (2005)

[xxxi] D D Basu, Commentary on the Constitution of India (G-1) 47(1993)

[xxxii] Ibid.

[xxxiii] Ibid. Also see, SP Sathe, Judicial Activism in India, 300-301(2004). Sathe argues that it will in the long run benefit the legal education and scholarship if “jurists who might be law professors or researchers” are considered for judicial appointments. Besides, Justice Frankfurter, oft-quoted example in this context, he gives example of Justice  Bora Laskin who was appointed to the supreme court of Canada straight from the  Toronto University Law School.

[xxxiv] T K Tope, Constitutional Law of India 618(2010)

[xxxv] E.g. Frankfurter, J was foreign-born and Jackson, J did not have a law degree. Tope cites the example of Justice Samuel Miller who earned a medical degree and practiced medicine for more than a decade. Besides, Chief Justice Taft was Dean of Cincinnati Law School. That is, there is rich tradition of appointing law professors and academicians as judges of the Supreme Court in the US.

[xxxvi] Supra note 33  at 618

[xxxvii] Bernard Schwartz, Some Makers of American Law 28(1985)

[xxxviii] Ibid.

[xxxix] Ibid. For the rest, his learning was under the superintendence of his father who, Marshall himself concedes, “had received very little education”.

[xl] Ibid.

[xli] D D Basu, Commentary on the Constitution of India, Vol.H, 34-35(1990)

[xlii] Basu op.cit. at 47.

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