Justice Bhuyan’s Celebration of University Space for Dissent and Questioning Reminds Authorities of the State to Uphold the Constitution

The following are excerpts from the address by Justice Ujjal Bhuyan, Judge, Supreme Court of India, at the 13th Convocation of National Law University, Delhi, held on August 30, 2026.

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THE INCREASING DIVERSITY of those pursuing advanced legal education, including the significant presence of women among today’s postgraduates, is a welcome development. The academia, the profession and the Bench enriched by varied experiences and perspectives are better placed to serve the full complexity of society. As I had said in one of my speeches in Hyderabad, the judiciary must be like a rainbow institution; I would extend it to the Bar and to the academia as well. The academia, the Bar and the Bench must reflect the real diversity of India. 

Since I am addressing LL.M. students who have completed their postgraduate studies, I presume that a few amongst you would join the legal profession, but many would like to continue with their higher educational pursuits. 

To those who are contemplating to join the profession, I would like to say that the legal profession is challenging but at the same time, it is rewarding. For a successful lawyer, the sky is the limit, as they say, but therein lies the challenge. The legal profession rests on a foundation of ethics most of which are not codified. To maintain professional integrity requires lots of courage and conviction. 

There is a long tradition of professional courage and commitment in the legal profession. Lawyers across generations have made personal and professional sacrifices rather than diluting their fidelity to the law and justice.  

Justice Oliver Wendell Holmes, Jr., in his lecture on “The Profession of the Law” posed a question which every serious lawyer confronts and himself tried an answer. He said, the practice of law must not be seen only as a way to earn a living but also as a way to make out a life. Making out a life for him meant to live greatly. Living greatly for him did not necessarily mean accumulating wealth or achieving public renown. To him, it meant living fully and striving for something larger than oneself. It is the pursuit of justice.

To those who are joining the legal profession, I would say that throughout your professional life, it would continue to demand and test your courage and commitment. The path of integrity and upholding your character is difficult, particularly when no one is watching, but in that very demand, lies the possibility of living greatly.  

So, my best wishes to those who are joining the profession. I also understand that many amongst you would like to continue further with your higher education. It is good. I wholeheartedly endorse law students pursuing legal scholarship. We need a strong academia. 

The judiciary and the academia are not competing rivals. Rather I would say, they complement each other. A strong academia is an asset to the judiciary. While the judiciary can look towards the academia for providing it with the requisite intellectual input, the academia can do a great service by pioneering research in various fields of law including analysis of the judges, their judicial work and the functioning of the courts generally.

A Jurist as a Judge Still a Distant Goal

In this connection, may I draw your attention to a provision of the Indian Constitution. It deals with appointment of judges of the Supreme Court. Clause 3 of Article 124 of the Constitution says that a person shall not be qualified for appointment as a judge of the Supreme Court of India unless he is a citizen of India and has been a judge of the High Court for a minimum of 5 years or practiced as an advocate for at least 10 years or in the opinion of the President, is a ‘distinguished jurist’. While our Constitution has a provision for appointment of a jurist as a judge of the Supreme Court, no jurist has been appointed so far to the Supreme Court though the Constitution has completed more than 76 years. 

There can be two reasons for this unused mandate of the Constitution. The first is that earlier in the view of the Central Government and thereafter of the collegium, there is not enough depth in the Indian academia to be considered for elevation as a judge of the Supreme Court. The second is that both the Central Government and the collegium have not seriously explored this provision thus far.

Let me delve on this a little bit more.

In an article published in the Journal of the Indian Law Institute, this issue was examined. The founding fathers of the republic had envisioned distinguished jurists as judges of the Supreme Court. Though the Constitution of India makes a provision under Article 124(3) for appointment of ‘distinguished jurists’ as judges of the Supreme Court, the general practice so far is that either a senior High Court judge or Chief Justice of a High Court is appointed as a judge of the Supreme Court. Occasionally some direct appointments from the Bar are also made to the Supreme Court. No legal academic has yet been appointed as a judge of the Supreme Court, despite there being brilliant minds who could have made a substantial contribution had they become part of the Bench.

During the constituent assembly debates, a member of the constituent assembly H.V. Kamath had proposed  that ‘distinguished jurist’ category should be added to the list of eligible candidates for appointment to the Supreme Court of India in the draft Constitution. He said, the object of his amendment was to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court. It is desirable, may be essential, to have men and women who are possessed of outstanding legal and juristic learning. According to him, the field should not be confined to judges and advocates alone.

The proposal of H.V. Kamath was supported by another constituent assembly member M. Ananthasayanam Ayyangar. He said a ‘distinguished jurist’ may be a member of a law college or a dean of the faculty of law in a university. There are many eminent persons who would qualify for the category of ‘distinguished jurist’. He was of the view that atleast one of judges of the Supreme Court should be a jurist of great repute. He acknowledged that he had consulted his friend Alladi Krishnaswami, who had told him that some years ago President Roosevelt in the United States of America had appointed one Philip Frankfurter, a professor in the Harvard University, as judge of US Supreme Court. He said, now Frankfurter is considered to be one of the foremost and eminent judges in the United States. 

Dr. Ambedkar neither objected nor opposed the proposed amendment. He only expressed some reservation as to whether the word ‘distinguished’ would be the proper word. He, however, left it to the drafting committee to decide whether to accept the word ‘distinguished’ or substitute the same by the word ‘eminent’.

Kamath’s proposed amendment was accepted by the constituent assembly. 

The constituent assembly evidently felt it important to have legal academics and professors as judges of the Supreme Court of India. 

The argument against appointing legal academics and scholars as judges is that they lack practical experience. But this is a very shallow objection. Supreme Court is not only the highest adjudicatory body but it is the moral, legal and constitutional conscience keeper of the nation. It is above technicalities.

The reason for having this provision of distinguished jurist in Article 124(3) is to diversify the Bench with talented judges. It was believed that with their academic scholarship, such category of ‘distinguished jurist’ would not remain constricted by narrow technicalities thereby being in a stronger position to deal with public law issues. A ‘distinguished jurist’ can be a great value addition to the Bench. By his or her scholarship, he or she can make a visible contribution to the decision-making process at the top level. Participation of renowned legal academia and scholars would have a defining impact on the judicial functioning of the Supreme Court. 

DD Basu believed that inclusion of academic jurist of the right order into the highest tribunal would lead to its enrichment.

It is regrettable that this provision has remained one of our Constitution’s unused mandates. 

Professor Upendra Baxi lamented that for long, this 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. According to him, the prospect of having our own equivalent of a Felix Frankfurter has been wilfully squandered. 

Opinions have been expressed that a university professor can contribute significantly to the judicial system. I have no reason to take a different view. A great percentage of law academics in India are highly competent, yet their talents have been under appreciated and as a result they have been unable to contribute in a more meaningful way to the development of law in our country.

Odd as it may sound, the US Constitution does not require a formal law degree for a person to be appointed or, as they call it, nominated to be a judge of the Federal Court. Article II Section 2 gives the President of America the power to nominate and with the advice and consent of the Senate, appoint judges of the Supreme Court. It sets no eligibility criteria. Article III Section 1 establishes the judicial power in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. It provides that judges shall hold their office during good behaviour and receive compensation that cannot be diminished. Interestingly, it is silent on qualifications. 

It is not only in the United States but across many jurisdictions including Great Britain, Canada and Kenya where distinguished academics are appointed as judges of the constitutional courts. 

So, this is an issue which needs our serious attention. 

Legal Education and Courage to Ask Questions

For both the categories of students passing out today, those who are joining the profession and those who would like to continue further with their legal education, I believe the most valuable quality that legal education can give you is not simply the ability to know the law but the courage to question, to question established assumptions and to ask whether the law in its application in a particular way has served the cause of justice. But asking a question is only the beginning. What matters equally is our willingness to engage with the answer especially when it differs from what we believe. A healthy academic environment does not require everyone to arrive at the same conclusion. It allows different views to be expressed, examined and debated. There is real value in a discussion that leaves us thinking even when it does not give us a final answer. For it is only through such engagement that we learn not only to examine our own views but also to listen, consider and understand why another person may see the same issue differently. 

Tolerate Disagreement 

And this brings me to a value that I believe is just as important as the freedom to question: it is the ability to tolerate disagreement or a different point of view. A democratic society cannot be built on the edifice that everyone will think alike. It is built on the understanding that differences will exist and that those differences must be accommodated within the broader constitutional framework. 

The State Must Listen to Citizens

Our Constitution gives this idea of tolerance a deeper meaning. It does not ask us to surrender our individuality. It recognises that a free society will contain different opinions, beliefs and ways of looking at the world. The freedom to express an opinion, to disagree with the prevailing view and to participate in public life would be meaningful only when there is space for dissent. Constitutional democracy, therefore, requires the state to listen to the citizens, the citizens to listen to one another, to have institutions that are accountable and a society that does not treat every dissent as a threat. 

Right to Question, Expression of Constitutional responsibility. 

As you move forward, you will remember that disagreements need not divide us. Some of the most meaningful developments in law and society have emerged because there were people willing to look at an accepted position differently and there were people who were willing to engage with that challenge. And perhaps this is one of the greatest lessons a university can give you. You leave this university with the confidence to think independently and having imbibed the democratic culture to listen to another perspective. Therefore friends, as you leave this institution today, take with you the knowledge that you have gained, continue to ask, continue to listen and continue to engage. 

In a democracy, the right to question is not an act of defiance. It is an essential expression of citizenship, liberty and constitutional responsibility. 

Tolerance A Constitutional Value

Our Constitution does not seek uniformity of thought. It creates a framework in which people with different beliefs, opinions and convictions can live with equal dignity and participate in a common democratic life. This idea was beautifully expressed by Justice O. Chinnappa Reddy in the famous case of Bijoe Emmanuel vs. State of Kerala where he observed:

Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practises tolerance; let us not dilute it.

Justice O. Chinnappa Reddy said this four decades ago. If it was relevant then, it is even more relevant today. 

Tolerance is not merely a matter of personal courtesy, it is a constitutional value. A democracy becomes meaningful not when everyone speaks the same language of thought, but when different voices can co-exist, be heard and be treated with dignity. 

The maturity of a democracy is reflected not merely in how it treats opinions that are popular having the majoritarian mandate but how it responds to opinions that are difficult, unpopular or inconvenient. 

Tolerance is not merely a matter of personal courtesy, it is a constitutional value. A democracy becomes meaningful not when everyone speaks the same language of thought, but when different voices can co-exist, be heard and be treated with dignity. 

The maturity of a democracy is reflected not merely in how it treats opinions that are popular having the majoritarian mandate but how it responds to opinions that are difficult, unpopular or inconvenient. 

Living With Disagreement Essence of Constitutional Democracy 

Here, I would like to make a simple observation of my own: an intolerant mind by its very nature, is at odds with the spirit of the Constitution. It is a manifestation of another form of violence. India is the land of Buddha and Gandhi. India is the land of peace and tolerance. There is no place for violence. Our Constitution protects the freedom to speak, to think and to believe differently. Intolerance begins to undermine that framework when disagreement or dissent is no longer treated as a legitimate difference of opinion but as something that must be silenced, rejected or punished. The ability to live with disagreement is, therefore, not merely a social virtue. It is the very essence of a liberal constitutional democracy. 

Role of University in a Constitutional Democracy 

This is also why the role of a university in a constitutional democracy is so important. A university is not merely an institution that transfers knowledge from one generation to another. It is a place where individuals encounter ideas that may be different from their own, where established positions can be examined and questioned; where disagreements can take place through reason rather than hostility. If we want a democratic society that respects liberty and difference, that culture has to begin somewhere. It can only begin in our universities. A university, in my view, should be one of the first places where the habit of thinking freely begins. It should be a space where an idea is not accepted merely because it is familiar and where student does not hesitate to ask difficult questions simply because the answer may be uncomfortable.

For a student of law, these ideas cannot remain merely academic. The law constantly places us in situations where one person’s freedom may appear to conflict with another’s, where the exercise of power must be balanced against individual rights, and where an established position may have to be examined in the light of constitutional principles. The role of a legal professional or a legal academic is, therefore, not simply to know what the law says, but to understand the values that give the law its legitimacy. Liberty, equality, dignity and justice are not abstract words in our Constitution. The responsibility of the legal profession and scholars is to ensure that, even in moments of disagreement, dissent and conflict, these constitutional values remain at the centre of our understanding of law.