Constitution

This article is written by L M Lakshmi Priya, a student from the school of law, Sathyabama Institute of Science and Technology, Chennai. This article provides an exhaustive overview of 99th Constitutional Amendment.

It has been published by Rachit Garg.

Table of Contents

Introduction 

The appointment of judges in the courts has always been a matter of debate in India. How will they be appointed? Whether they are competent enough to be appointed? Whether the Committees or persons selected to appoint them well qualified and competent? Such questions do arise when dealing with this issue. Then comes the 99th Constitutional Amendment, which proves to be a major step in dealing with judicial appointments in India and also holds significant importance in the Indian Constitution. The article deals with the same and also analyses the judicial appointment scenario in the country.

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99th Constitutional Amendment

What is the procedure for a constitutional amendment

A constitutional amendment entails modifying a few clauses or modernizing a few external aspects to suit current needs. To reflect modern reality and necessity, it is essential to allow for a constitutional amendment. According to Article 368 of the Indian Constitution, there are three ways to amend the Constitution: by simple majority, by special majority, and by ratification by at least half of the states. Article 368 provides the parliament with the authority to amend the Constitution, including the fundamental rights, without significantly altering the essential principles of the Constitution. The following are the steps that must be taken to amend the Constitution. 

  • Bills may be introduced in either house of parliament but not in state legislatures.
  • A minister or a private member may introduce the bill.
  • The President’s approval is not required for the introduction of a bill in parliament.
  • The bill needs to be approved by each house separately.
  • A special majority (2/3 of the members present and voting, and at least 50% of the overall strength) is required to pass it.
  • The bill is brought to the president for assent after being duly approved by both Houses of Parliament and, if required, the state legislatures.

A constitutional amendment formally changes the text of the constitution. Constitutions must be modified throughout time to address insufficient clauses, respond to fresh demands, include new rights, etc. A constitution’s text would not otherwise be able to take current political and social needs into account. But political or ill-considered changes must also be prevented from changing the constitution.

An analysis of the 99th Constitutional Amendment

The 99th Constitutional Amendment Act established the National Judicial Commission Act (NJAC) in 2014. The Constitutional 121st Amendment Bill, 2014, which creates the National Judicial Appointments Commission, has been introduced concurrently with the Bill (NJAC). The Bill outlines the process that the NJAC must follow when recommending candidates for appointment as the Chief Justice of India and other Supreme Court judges, as well as the Chief Justice and other judges of High Courts. In India, there is a system known as the ‘Collegium’ that allows only judges to appoint and transfer judges. This system is also known as “Judges selecting  Judges”.  The system was put in place to reinforce and enhance the appointment-making process. 

The term ‘Collegium’ was created by the judiciary itself to retain the authority to choose judges on its own and is not found anywhere in the Constitution. The National Judicial Commission was established due to the 99th Constitutional Amendment. This amendment substituted the National Judicial Appointment Commission (NJAC) for the collegium system of appointing judges. However, the Supreme Court backed the collegium system and ruled that the NJAC was contradicting the basic structure principle and the judiciary’s independence. The commission would be comprised of six people under the proposed NJAC Act: the Chief Justice of India (Chairperson), two other senior Supreme Court judges sitting next to the CJI, the Union Law Minister, and two eminent individuals chosen by a committee made up of the CJI, the Prime Minister, and the Leader of the Opposition. The NJAC gave the panel the authority to suggest candidates for the positions of Chief Justice of India, justices of the Supreme Court, Chief Justices of High Courts, and other High Court judges. The CJI and other judges of the High Courts may be transferred from one High Court to another at its recommendation. 

The various amendments brought by the 99th Constitutional Amendment

In the 99th Constitutional Amendment, the new Article 124A was added after Article 124.

Article 124 –  Establishment and constitution of the Supreme Court 

The Supreme Court of India shall consist of the Chief Justice of India and a maximum of seven additional judges, or a greater number if it is prescribed by the law. It also states that the Supreme Court Justice will be selected by the president through a warrant which bears the signature of the president.

Article 124 A – National Judicial Appointments Commission 

The commission will be headed by 

  • The Chief Justice of India, 
  • The two most senior Supreme Court judges 
  • Two eminent people (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India, and the Leader of Opposition in the Lok Sabha or the leader of the single largest opposition party in the House where there is no such Leader of Opposition)
  • One of the two eminent individuals would come from a minority group such as the SC/ST/OBC or be a woman. The distinguished individuals are nominated for a three-year term and are not eligible for re-nomination.

Article 124 B – Functions of the commission

The NJAC’s responsibility is to suggest persons for the positions of Chief Justice of India, Supreme Court Justices, Chief Justices of the High Court, and other High Court Judges, as well as for the transfer of Chief Justices and other Justices from one High Court to another High Court.

Article 124 C –  Power of Parliament to make laws

The Chief Justice of India, as well as the other justices of the Supreme Court and High Court, may be appointed through legislation that is regulated by Parliament, and the commission may establish any rules and regulations necessary for this system.

Article 127 –  Appointment of ad hoc Judges

The words “the Chief Justice of India” shall be replaced in Article 127 (1) of the Constitution with the phrase “the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India.”

Article 128 – Attendance of retired Judges at sittings of the Supreme Court

In Article 128 of the Constitution, the phrase ‘the National Judicial Appointments Commission shall be used in place of the phrase ‘the Chief Justice of India’.

Article 217 – Appointment and conditions of the office of a Judge of a High Court 

The words, figures, and letter “on the recommendation of the National Judicial Appointments Commission” referred to in Article 124A shall be substituted for the portion beginning with the words ‘after consultation’, and ending with the words ‘the High Court’ in Article 217 (1) of the Constitution.

Article 222 – Transfer of a Judge from one High Court to another 

The words, figures, and letter “on the recommendation of the National Judicial Appointments Commission referred to in Article 124A” shall be substituted in clause (1) of Article 222 of the Constitution for the words “after consultation with the Chief Justice of India.”

Article 224 – Appointment of additional and acting Judges

The words ‘the President may appoint’ in clauses (1) and (2) of the existing Article 224 shall be replaced through this amendment with the phrase “the President may, in consultation with the National Judicial Appointments Commission, appoint.”

Article 224 A – Appointment of retired judges as sittings of High Courts

The words “National Judicial Appointment Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President” shall be substituted for the words “the Chief Justice of a High Court for any State may at any time, with the previous consent of the President,” in Article 224A of the Constitution.

Article 231 –  Establishment of a common High Court for two or more States

 Under Article 231 clause (2) sub-clause (a) of the Constitution shall be omitted.

National Judicial Appointments Commission 

The National Judicial Appointment Commission was created by the Union Government of India by introducing the 99th Constitutional Amendment, which was approved by a 2/3 vote from each house of parliament. According to Articles 124, 217, and 222 of the Indian Constitution, judges must be appointed to the Supreme Court and the High Court, as well as moved from one High Court to another. The Chief Justice and other judges were consulted when the President appointed justices before the NJAC was created. So, after consulting with the Chief Justice, the President made the decisions regarding the transfers. The process that the NJAC must follow for recommending candidates for appointment as judges of the Supreme Court and the High Courts, as well as their transfers, is governed by the NJAC Act. Judges must be recommended for nomination based on their seniority, aptitude, merit, and any other qualifications that may be outlined in NJAC regulations. The President is required to make the nomination following these suggestions.

History of NJAC

The Justice Venkatachaliah Commission, which was established by the NDA, recommended in its report in 2002 that a National Judicial Commission be established for the nomination of judges. The NJAC Act was subsequently passed by the Indian Government through a Constitutional Amendment in August 2014, and on December 31, 2014, the Indian President, Pranab Mukherjee, gave his approval to the law. The Supreme Court Advocates on Record Association and seven other parties filed a series of petitions in the Supreme Court on April 13, 2015, disputing the legality of the statute and arguing that it violated the independence of the judiciary. The NJAC Act was found unconstitutional on October 16, 2015, in the case of Supreme Court Advocates-on-record Association v. Union of India (2015) by a five-judge bench made up of Justices JS Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh K. Goel. The bench also ordered the reintroduction of the two-decade-old “judges selecting judges” collegium system. Later, in the C. Ravichandran Iyer case (1995), the Court held that it would be clear that a non-cooperating judge or Chief Justice of a High Court may be penalized by self-regulation through the internal procedure if there was a wide gap between proven misbehaviour and terrible conduct inconsistent with the high office. This internal process would close the constitutional gap and have positive results.

The National Judicial Appointments Commission Act, 2014

The Parliament passed the National Judicial Appointments Commission Act of 2014 on the 65th anniversary of Republic Day, which details the procedures to be followed for appointing the chief justices of the Supreme Court and High Court as well as the transfer of judges.

Procedure for selecting Supreme Court judges and High Court judges under the NJAC Act 2014 

Supreme Court judges

The Act requires the NJAC to recommend a Supreme Court judge who is the senior judge to be appointed as Chief Justice of India. He must be seen as qualified to serve in the position. NJAC will provide recommendations for candidates based on their qualifications, merit, and other factors specified in the rules for determining the other supreme court judges.

High Court judges

According to the seniority of High Court judges, the NJAC is to recommend a judge for the position of Chief Justice of a High Court. Additional consideration would be given to aptitude, merit, and other eligibility standards mentioned in the regulations. In the event of the nomination of a regular judge of a High Court, NJAC would provide names to the Chief Justice of the relevant High Court and request his opinion. The two judges with the most seniority would then consult with the Chief Justice, who could also speak with other justices and attorneys if necessary. Before recommending something, the Governor’s and Chief Minister’s opinions are also taken into account. The NJAC is the primary body in charge of formulating suggestions for the replacement of Chief Justices and judges on the High Court.

Power of the President to require reconsideration

The NJAC’s recommendations could be subject to further scrutiny by the President. After reconsidering, the President must select the candidate by following the NJAC’s unanimous recommendation.

Landmark judgments relating to judicial appointments

India enacted the Constitution in 1950, following its independence. By the Constitution, the Chief Justice of India and any additional justices that he felt were necessary were appointed by the President, along with the remaining Supreme Court judges, before 1973. The following cases are those that fascinated NJAC’s introduction.

S.P Gupta v. Union of India (1982)

The aforementioned case of S.P Gupta v. Union of India (1982) dealt with the nomination and removal of judges as well as the independence of the court. One of the concerns brought up was the legality of Central Government directives prohibiting the appointment of two judges. To support this assertion, the petitioners requested access to any correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. However, the state argued that these documents were confidential under Article 74(2) of the Indian Constitution 1949, which forbids judicial review of the Council of Minister’s advice to the President, and Section 123 of the Indian Evidence Act 1872, which forbids the use of unpublished official records on state affairs as evidence without the consent of the department’s head in question. According to Section 162 of the Indian Evidence Act 1872, a witness who has been ordered to produce a document before a court must do so, and the court will rule on any objections. 

In the case, which is often referred to as the Judges’ Transfer Case or the First Judge’s Case, the Honourable Supreme Court, with a majority of 4:3 decided that the union government, and not the Chief Justice of India, should be consulted with the variations that occur in the constitutional functions. The Honourable Supreme Court agreed in full with the definition of ‘consultation’ mentioned in Articles 124(2) and 217(1).  However, the Chief Justice of India’s role in the consultation is merely that of an advisor, according to the Supreme Court, which also stated that the transfer of judges from one High Court to another only occurs after consultation with the Chief Justice of India and is not done out of punishment but rather for the public interest. Additionally, it was decided that before forming an opinion, the Chief Justice of India must speak with at least two of the court’s senior-most judges to ensure harmony between the legislative branch of government and citizen rights. The Constitution has guaranteed the judiciary its own independence.

Supreme Court Advocates on Record Association v. Union of India (1993)

In the case of Supreme Court Advocates on Record Association v. Union of India (1993), a nine-judge Constitution Bench reversed the S P Gupta ruling by a 7:2 majority and established a unique process for the appointment and transfer of judges in the higher judiciary known as the ‘Collegium System’. The case determined that the phrase ‘consultation’ would not decrease the CJI’s vital role in judicial appointments while simultaneously giving the CJI primacy in matters of appointment and transfers. The executive’s authority over judicial selections was reduced by this verdict, which preserved the essence of Article 50 of the Constitution. Additionally, the verdict eliminated personal preference and political interference from the appointment process. 

The Court overturned the first judge’s case by declaring that when there is a dispute over the appointment of judges between the President and the Chief Justice of India, the Chief Justice of India’s opinion may not have primacy, but it would be conclusive while deciding the matter. The court further ruled that the collegium system will govern the Chief Justice’s powers to maintain the check and balance system. To ensure that the judiciary has the final say in all matters about appointments to the Supreme Court and High Court, the Chief Justice of India would only decide after consulting with the two senior judges of the Supreme Court regarding the appointments to the Supreme Court. Similarly, in the case of the High Court Judges, the Chief of the High Court would only make recommendations after consulting with the two senior judges of the High Court.

The Supreme Court of India  (IN RE: APPOINTMENT & TRANSFER OF JUDGES) v. Civil Advisory Jurisdiction (1998)

The collegium system was increased to a five-member body for the nomination of Supreme Court judges on the President’s recommendation. This body would be composed of the Chief Justice of India and the four senior-most judges. The Chief Justice of India and the two senior-most judges would make up the collegium system’s body for the appointment of High Court justices; In the third judge’s case, of the Supreme Court of India  (IN RE: APPOINTMENT & TRANSFER OF JUDGES) v. Civil Advisory Jurisdiction (1998) a nine-judge Supreme Court bench stated a consistent opinion regarding the collegium system of appointment of judges with the Chief Justice and of four senior judges rather than the two mentioned in the second judge’s case. The Supreme Court also held that the word “consultation with the Chief Justice of India,” which is mentioned in Articles 217(1) and 222(1) of the Constitution, requires a majority opinion of the judges to appoint the Chief Justice. 

Why was the NJAC declared unconstitutional

Supreme Court Advocates-on-record Association v. Union of India (2015) 

This historic decision has come to be known as the ‘Fourth Judges Case’. It came forth as a result of several petitions contesting the constitutionality of the NJAC Act and the 99th Amendment.

Facts of the case

The NJAC Act and the 99th Constitutional Amendment were contested before a five-judge Constitution Bench through various petitions. Under Articles 124(2) and 217(1) of the Constitution, the NJAC was established to select, appoint, and transfer judges to the higher judiciary. Along with the Chief Justice of India and the next two seniormost  Supreme Court justices, the NJAC also included the Union Minister for Law and Justice and two distinguished individuals. The Chief Justice of India and a group of the four senior-most Supreme Court judges were part of the collegium that the NJAC intended to replace.

Issue of the case

Whether the NJAC Act and the 99th Amendment Act were constitutional under the constitution?

Observation of the court 

The Supreme Court observed that the NJAC’s judicial component was not adequately represented by the Chief Justice of India and the next two senior Supreme Court judges, and their inclusion was insufficient to maintain the judiciary’s primacy in the process of choosing and appointing judges. This shattered the concept of “independence of the judiciary.” The independence of the judiciary and the principle of separation of powers are violated by the Union Minister in charge of Law and Justice involvement in NJAC. Reciprocity and feelings of payback to the political executive would erode the independence of the judiciary. The NJAC Act and the 99th Constitutional Amendment were struck down mostly due to the predominance of the executive.  

Judgement of the case

The 99th Constitutional Amendment, along with the NJAC Act, was declared unconstitutional and void by the Court in this case, which ruled 4:1 in its favour. The majority, which included Justices Khehar, Lokur, Goel, and Joseph, claimed that the involvement of the executive in the appointment of judges infringed upon its primacy and supremacy and violated the fundamental constitutional principle of the separation of powers between the executive and judiciary organs. 

However, Justice Chelameswar disagreed with the four judges’ stating that even though it is believed that the independence of the judiciary is a  basic structure of the system, giving weight to the judiciary’s opinions is not the accurate and only way to ensure the effectiveness of the judiciary. This means that it is neither a norm nor a fundamental principle of the Constitution.

Even though the collegium system was upheld by the majority verdict, it was noted that the system needed to be modified to improve responsiveness and transparency. The judiciary’s independence was compromised since the judicial components, which consist of the Chief Justice of India and two senior Supreme Court judges, were insufficient to uphold the judiciary’s primacy in terms of appointment and selection. Finally, they agreed with the claims that the NJAC Act violated the Constitution’s fundamental principles of judicial independence. As a result, the collegium process, which was the previous technique for choosing Supreme Court and High Court judges, should continue to be used, even with improved amour.

Way forward

  • The process of filling vacancies, which involves the government and the judiciary, is ongoing and collaborative; hence, a deadline cannot be set for it. The time has come to consider a permanent, independent organisation to institutionalise the procedure with sufficient safeguards to maintain the judiciary’s independence and assure judicial supremacy but not judicial exclusivity.
  • It must guarantee independence, reflect diversity, exhibit professionalism, and uphold integrity.
  • The concept of “judges appointing Judges” serves as the foundation for the existing system of judicial appointment. Although the Supreme Court of India has ruled that the executive should not intervene excessively in the judiciary’s ability to nominate judges.
  • It has been made very obvious that all of the components of a “democratic Government” require the maintenance of specific checks and balances. The Constitution’s framers made a conscious decision to keep the executive involved in the selection of the judiciary to prevent any abuse of power by a single branch of government, even though the entire concept of the separation of powers was created to keep each branch independent of the other.

Conclusion

In conclusion, it may be said that the NJAC is one step ahead of the collegium system in terms of judicial accountability. However, the reality is that there is a thin line between judicial accountability and degrading the independence of the judiciary. The NJAC may not be the best option for appointing judges, but it beats the ambiguous collegium system.

Frequently Asked Questions (FAQs) 

Who introduced the NJAC bill?

The then-Union Law Minister, Mr Ravi Shankar Prasad, introduced the NJAC bill, 2014, in the Lok Sabha on August 11, 2014.

What are the issues with the current collegium system?

The collegium system expands the scope of favouritism because it doesn’t offer any rules or criteria for the appointment of Supreme Court judges. In the collegium system, there are no requirements for screening candidates or performing background checks to determine their credibility. 

References 

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