From lectern to bench: Why law professors belong in India’s higher judiciary

Teaching law is a lifelong apprenticeship and that is the premise of this blog: law professors, who live inside legal developments every day deserve a real place among those considered for the higher judiciary.

The framers of our Constitution agreed. Article 124(3)(c) makes a citizen eligible for the Supreme Court if he or she is, in the opinion of the President, "a distinguished jurist". Yet, in more than 76 years, not a single jurist has entered the Court through this door. The High Courts have no such door at all, since Article 217(2) admits only those with 10 years of judicial office or 10 years at the Bar.

The silence has now been broken from within the Court itself. On August 30, 2026, addressing the LL.M. convocation of National Law University, Delhi, Justice Ujjal Bhuyan called the clause one of the Constitution’s "unused mandates". He dismissed the objection that scholars lack courtroom experience as shallow, pointing to academics who serve on constitutional courts in the United States, the United Kingdom, Canada and Kenya.

So, does the world’s experience support the lectern-to-bench route, or warn against it? The record of professor-judges across the globe is richer and more mixed than either side of the debate usually admits.

Currency of knowledge: A professor cannot teach last year’s law. Every new statute - such as the Bharatiya Nyaya Sanhita, 2023 that replaced the Indian Penal Code - and every landmark ruling must be read, digested and explained to a room of skeptical students. Classroom questions work as a constant stress test of what the teacher knows.

Systemic thinking: A judge decides the dispute in front of the court; a scholar studies how thousands of such disputes fit together. The professor brings the habit of asking whether a ruling is coherent with the wider body of doctrine and what it will mean for the next hundred cases.

Comparative and theoretical depth: Questions of privacy, proportionality and sentencing increasingly turn on comparative reasoning and legal theory. Academics read foreign courts and jurisprudence as routine work, not as an occasional luxury.

Judgments that teach: Scholar-judges tend to write structured and reasoned opinions. That has a transformative effect in India, where Article 141 makes the law declared by the Supreme Court binding on every court in the country.

A fair number of qualifications belong here. It may be wrong to assume that sitting judges stop studying once appointed. For example, the National Judicial Academy in Bhopal and other similar state judicial academies run regular training. Many judges are serious scholars in diverse domains. The difference is one of time and perspective. A judge with a crushing docket studies the law to dispose of the case. However, a professor may study it to understand the system as a whole. Nonetheless, a strong bench needs both.

Several legal systems build the academic route into law itself. Germany’s Judiciary Act treats every full professor of law at a German university as qualified for judicial office and Italy’s Constitution names full law professors as one of three pools for its constitutional court. The Statute of the International Court of Justice admits "jurisconsults of recognized competence in international law".

United States: The US Supreme Court has never demanded judicial experience. Of the 111 justices who had served when Elena Kagan was nominated, 41 had none. Kagan, a former University of Chicago professor and Dean of Harvard Law School, wrote the majority in Miller v. Alabama (2012), holding that mandatory life without parole for juvenile offenders violates the Eighth Amendment. Antonin Scalia, a Chicago law professor before he joined the bench, reshaped criminal procedure in Kyllo v. United States (2001), which held that thermal imaging of a home is a search. In Crawford v. Washington (2004), he revived the accused’s right to confront prosecution witnesses.

United Kingdom: Brenda Hale spent 18 years teaching law at Manchester before joining the Law Commission and, in 1994, became the first High Court judge to have built her career in academia rather than at the Bar. As President of the UK Supreme Court, she delivered the unanimous 2019 ruling in Miller II/Cherry that the prorogation of Parliament was unlawful. In 2020, Prof Andrew Burrows of Oxford became the first person appointed to the UK’s highest court directly from a full-time academic post. In Pakistan International Airline v. Times Travel (2021), he agreed with the result but proposed his own "bad faith demand" test for lawful-act duress, which the majority found too wide.

Israel: Aharon Barak was Professor and Dean of Law at the Hebrew University before serving as Attorney General and joining the Supreme Court in 1978. As President, he wrote the unanimous 1999 judgment in Public Committee Against Torture in Israel v. State of Israel. The Court held that the security service had no authority to use physical pressure in interrogations and that the criminal-law defence of necessity cannot serve as advance authorisation for such methods.

Germany: Andreas Voßkuhle, a law professor at Freiburg, became the youngest President of the Federal Constitutional Court in 2010. In February 2020, the Second Senate he presided over declared section 217 of the Criminal Code, which banned business-like assistance in suicide, void and recognised a right to a self-determined death

Canada: Bora Laskin taught law at Toronto and Osgoode Hall for 25 years before becoming a judge and, later, Chief Justice. His lone dissent in Murdoch v. Murdoch (1973), backing a farm wife’s claim to the ranch she had helped build, proved more influential than the majority and led to matrimonial property reform across Canada. Louise Arbour taught criminal law, criminal procedure and evidence at Osgoode Hall for 13 years. Dissenting in R. v. Malmo-Levine (2003), she argued that the state may not imprison people for conduct that harms only themselves. 15 years later, Parliament legalised recreational cannabis.

South Africa: Kate O’Regan, an associate professor at the University of Cape Town, and Albie Sachs, a former law professor in Southampton and Maputo, sat on the first Constitutional Court in 1994. In S v. Jordan (2002), they co-wrote the minority opinion holding that punishing the sex worker but not the client was indirect unfair discrimination against women.

Kenya: Justice JB Ojwang, who taught at the University of Nairobi for 27 years and served as its Dean of Law, and Justice Smokin Wanjala, a Nairobi law lecturer for nearly two decades, sat on the bench in Muruatetu v. Republic (2017). The Court declared the mandatory death sentence for murder unconstitutional, in a case argued with the help of India’s own Mithu v. State of Punjab (1983).

An honest argument must also count the failures and the global record offers several.

Brilliance is no guarantee of wisdom: Felix Frankfurter was Harvard’s most celebrated law professor, yet in Minersville School District v. Gobitis (1940), he wrote the opinion upholding compulsory flag salutes for Jehovah’s Witness schoolchildren. The Court overruled him just three years later in West Virginia State Board of Education v. Barnette. Oliver Wendell Holmes Jr., author of The Common Law and briefly a Harvard professor, wrote Buck v. Bell (1927), upholding the forced sterilisation of a young woman.

The courtroom gap: Most academics have never examined a witness or run a trial and a large share of the Indian appellate docket turns on appreciating evidence in criminal appeals. Lord Burrows himself believes he would not have reached the UK Supreme Court without more than two decades as a part-time Recorder and Deputy High Court Judge. He also observes that academics reason from the law down to the facts, while career judges tend to work up from the facts.

Grand theory and the charge of activism: In United Mizrahi Bank v. Migdal (1995), Barak’s court claimed the power to strike down Knesset legislation. He called it a step towards “constitutional revolution”. Critics, including Judge Richard Posner, argued that Barak built this judicial power without a secure constitutional basis and the resentment fed directly into Israel’s 2023 judicial overhaul crisis.

Collision with other institutions: In its PSPP judgment of May 5, 2020, Voßkuhle’s Second Senate declared both a European Central Bank bond programme and a ruling of the EU Court of Justice to be ultra vires. The European Commission responded by opening infringement proceedings against Germany in June 2021.

Proportion matters here too. Judges drawn from the Bar and the judicial service have produced debacles as well. India’s controversial judgment, ADM Jabalpur v. Shivkant Shukla (1976), which denied the remedy of habeas corpus during the Emergency, came from a bench with no academic on it. The lesson is not that professors fail, but that no single career path guarantees good judging.

The global evidence does not support replacing career judges with university professors. However, it may support something modest and achievable - a regular path for outstanding scholars onto the higher bench.

Activate Article 124(3)(c): The Memorandum of Procedure should lay down criteria for a “distinguished jurist”, who holds sustained scholarship, contribution to legal reform and standing among peers, so that the route may be used on merit instead of remaining latent.

Open the High Courts: Article 217(2) has no jurist category. An amendment mirroring Article 124(3)(c) lets scholars serve where most constitutional and criminal law is first shaped.

Build a bridge to the courtroom: The British lesson is that academic judges do best when they have tasted adjudication first. India may draw senior academics into tribunals, law reform and regular work as amici curiae. It will help a professor to reach the bench with evidence and procedure.

Appoint in proportion: One or two scholars on a large court may sit with judges from the Bar and the service. It would add theoretical depth without loosening the court’s practical grounding.

Professors are not automatically better judges. However, a strong bench may need a balance of both. For example, Laskin in Murdoch, Arbour in Malmo-Levine and Barak in the torture case show what a scholar can give the law. The Constitution opened this door in 1950. It is time for India to walk through it.

Atika Khairi is an advocate practicing at the Delhi High Court.