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99TH AMENDMENT ACT 2014
AUTHORED BY - ADITI JHA & DURGESH KUMAR SINGH
INTRODUCTION
The joining of judges in Indian
courts has been a topic of ongoing discussion, raising questions regarding the
selection process, the qualifications of appointed judges, and the competence
of the committees or individuals involved in the joining procedure. In response
to these concerns, the 99th Constitutional Amendment was introduced, which
represents a significant milestone in addressing judicial appointments in
India. This amendment holds considerable significance within the framework of
the Indian Constitution as it aims to tackle and assess the state of judicial
appointments in the world.
99th Constitutional Amendment1
The process for amending the Indian Constitution, as
expressed in Article 3682, involves the following steps:
1.
Proposal:
An amendment bill is introduced in either the Lok Sabha or the Rajya Sabha,
initiated by a minister or a private member.
2.
Discussion
as well as Voting: The bill undergoes thorough discussion and debate in both
Houses of Parliament, requiring a simple majority to pass in each House.
3.
Joint
Sitting (if required): If there is a disagreement between the Houses or if the
bill is refused by one House, a joint sitting may be called. The bill should
proceed by a special majority at the joint sitting.
4.
Presidential
Assent: Once the bill is proceeded by both Houses, it is presented to the
President for approval. The President's approve is necessary for a constitutional
amendment.
5.
Incorporation
into the Constitution: After receiving the President's approval the bill
becomes an amendment and is integrated into the Indian Constitution.
Constitutional amendments serve as a formal means to modify the text of a constitution. These amendments are essential to address any shortcomings, respond
to emerging demands,
introduce new rights,
and cater to current political and social requirements. Without the ability
to amend, a constitution would be unable to adapt to
evolving needs.
However, it is vital to prevent
impulsive or ill-considered changes that could undermine the constitution's
integrity. There is a need for safeguards to ensure that amendments are made with careful
thought and consideration for their long-term consequences.
This helps maintain the stability,
coherence, and fundamental principles of the constitution, while still allowing for necessary updates
to reflect the changing times. Striking the right balance between the necessity for change and the need for prudence
is crucial in the process
of constitutional amendment.
An analysis of the 99th Constitutional Amendment
The National Judicial
Appointment Commission Act (NJAC)3 was established in 2014
through the 99th Constitutional Amendment Act. This amendment was introduced alongside the Constitutional
121st Amendment Bill, that created the National
Judicial Appointments Commission (NJAC). The NJAC Bill outlines the process for recommending candidates for various judicial
positions, including the Chief Justice
of India, Supreme
Court judges, Chief
Justices, as well as judges
of High Courts.
In India, there exists a system known as the
"Collegium," where judges have the
sole authority to choose and shift other judges. This process, often
referred to as "Judges selecting
Judges," was implemented to strengthen the appointment process. Although the word
“Collegium" was not originally mentioned in the Constitution, it was coined by the judiciary
itself.
The formation of the National Judicial Commission was a
result of the 99th Constitutional
Amendment, that aimed to return the collegium system with the NJAC. However, the Supreme Court ruled in
favor of the collegium system, deeming
the NJAC to be inconsistent with the principles of the Constitution's basic structure
and judicial independence.
As per the proposed NJAC Act, the commission would consist of
six members, including the Chief
Justice of India
as the Chairperson, two senior
Supreme Court judges, the Union Law Minister, and two notable men selected through committee
consisting of the CJI, the Prime Minister, and the Leader of the
Opposite party. The NJAC would be
responsible for recommending candidates for key judicial positions and facilitating the transfer of Chief Justices as
well as other judges of High Courts based on its recommendations.
The 99th Constitutional Amendment introduced several
changes through its provisions
The inclusion of the 99th
Constitutional Amendment led to the addition of Article 124A, which followed
Article 124 in the Constitution.
Article 124 pertains
to the formation and structure
of the Supreme Court in India.
It specifies that the
Apex Court shall comprise the Chief Justice
of India along with a maximum of seven additional judges, with the provision to appoint a higher number
if authorized by law. It further outlines that the appointment
of Supreme Court justices will be carried out by the President through a warrant bearing the President's signature.
Article 124A introduces the National Judicial Appointments Commission, which
will be led by the following
members:
-
The Chief Justice
of India,
-
The two most senior judges of the Apex Court,
and
-
Two notable individuals appointed by a committee
containing of the Chief Justice of India,
the Prime Minister of India, and the Leader of the Opposition in the Lok Sabha
or the leader of the largest
opposition party in the absence
of a designated Leader of the Opposition.
Among the two notable man, one must
either come through a minority class similar as SC/ST/OBC or be a female. Their
appointment is for a fixed term of three years and they are not qualified for
reappointment.
The main part of the National Judicial Appointments
Commission (NJAC), as stated in Article
124B, is to propose suitable candidates for several judicial
positions in India. These positions
encompass the Chief Justice
of India, Apex Court Justices,
Chief Justices of the High Court, and other High Court Judges.
Furthermore, the NJAC is entrusted with the responsibility of suggesting transfers
of Chief Justices
and other Justices
between different High Courts.
Article 124C confers upon Parliament the authority to approve legislation concerning the appointment of the Chief Justice of India,
and the more justices of the Apex Court and High Court. These laws are designed to manage the process of
appointment. Furthermore, the National
Judicial Appointments Commission (NJAC)
is empowered to establish any necessary rules and
regulations to ensure the smooth operation of this appointment system.
An amendment is proposed for
Article 127
of the Constitution, which entails modifying Article 127(1). The suggested change involves replacing
the mention of "the Chief Justice of India"
with the phrase
"the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India." This
amendment pertains to the joining of ad hoc Judges and aims to transfer the responsibility for these
appointments from the Chief Justice of India to the National Judicial Appointments Commission. However, such
appointments will only occur when the Chief Justice of India refers the affair
to the Commission.
Article 128 of
the Constitution is proposed to be modified,
replacing the mention
of "the Chief
Justice of India" with the term "the National
Judicial Appointments Commission."
This amendment relates to
the presence of retired Judges at
sittings of the Apex Court.
Similarly, Article 217(1) is subject to an
amendment, where the part starting with "after consultation" and finishing with "the High Court"
will be substituted with the phrase "on the recommendation of the National Judicial
Appointments Commission" as stated in Article 124A.
This amendment concerns the appointment and conditions of office for
Judges of the High Court.
Article 222 – Transfer of a Judge
from one High Court to another
In Article 222 of the Constitution, an amendment is proposed
to replace the phrase "after consultation with the Chief Justice of India" in clause (1) with the expression "on
the recommendation of the
National Judicial Appointments Commission referred to in Article 124A." This amendment specifically
relates to the transfer of a Judge from one High Court to another.
Article 224 – Appointment of additional and acting Judges
The proposed amendment to Article 224 suggests substituting
the phrase "the President may appoint"
with "the President may, in consultation with the National Judicial
Appointments Commission, appoint" in clauses (1) and (2) of the existing article.
This amendment pertains
to the appointment of
additional and acting Judges and emphasizes the involvement of the National
Judicial Appointments
Commission in the decision-making
process.
Article 224A – Appointment of retired judges
as sittings of High Courts
In Article 224A
of the Constitution, a proposed
amendment aims to replace the phrase "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" with the phrase "the Chief Justice of a
High Court for any State may at any time, with the previous consent of the President." This amendment pertains
to the appointment of retired
judges to serve as sittings
of High Courts.
Article 231 – Formation of a common High Court for
two or more States in Article 231 of the Constitution, an amendment suggests the
removal of clause (2) sub-clause (a).
NATIONAL JUDICIAL APPOINTMENT COMMISSION
The 99th Constitutional Amendment introduced by the Union
Government of India led to the establishment
of the National Judicial Appointment Commission (NJAC). This amendment received the necessary approval through a
2/3 majority vote in both houses of parliament. According to Articles 124, 217, and 222 of the Indian
Constitution, the appointment and shifting
of judges to the Apex Court and High Courts are mandated. Prior to the
formation of the NJAC, the President
sought consultation with the Chief Justice and other judges when making judicial appointments. Decisions
regarding transfers were also made by the President after consulting with the Chief Justice. The NJAC Act governs the process by which the NJAC recommends
suitable candidates for joining as judges to the Apex Court and High Courts,
and their transfers. The
recommendations are based on criteria such as seniority, aptitude, merit, and other qualifications marked in the
NJAC regulations. Subsequently, the President is obligated to make nominations in accordance with these
recommendations.
Background of NJAC
The Justice Venkatachaliah Commission, established by the NDA, suggested the establishment of a National Judicial Commission for
judge nominations in its 2002 report. Subsequently, the NJAC Act was passed by the Indian Government as a
Constitutional Amendment in August 2014,
receiving President Pranab Mukherjee's approval on December 31, 2014. However,
on April 13, 2015, the Apex Court
Advocates on Record Association and other parties filed petitions challenging the validity of the law, asserting that it violated
judicial independence. On October 16, 2015, a five-judge bench comprising Justices JS Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh
K. Goel declared the NJAC Act unconstitutional in the Apex Court Advocates-on-record Association v. Union of India
(2015) case. The bench also directed
the reinstatement of the "judges selecting judges" collegium system,
which had been in place for over two decades.
Additionally, in the C. Ravichandran Iyer case (1995),
the Court said that internal
self-regulation and procedures could be used to address
situations where there
was a significant discrepancy between proven misconduct and conduct
inconsistent with the esteemed
position of a indiscipline judge or Chief Justice of a High Court, bridging the constitutional gap and promoting positive outcomes.
On the 65th anniversary of Republic Day, the Parliament
approved the National Judicial Appointments
Commission Act in 2014. This legislation figures the protocols and policies to be followed when appointing Chief Justices
of the Supreme Court, High Court judges, and
transferring judges between courts.
Process
of selecting Apex Court judges and High Court judges
under the NJAC Act 2014
Apex Court Judges:
According to the Act, the NJAC is mandated to propose a
candidate for the position of Chief Justice
of India from among the senior judges of the Apex Court. The NJAC ensures that
the recommended judge possesses the
necessary qualifications and suitability for the role. When suggesting candidates for other Supreme Court judge positions, the NJAC takes into consideration factors such as qualifications, merit, and other criteria specified
in the regulations.
High Court Judges:
Regarding the appointment of Chief Justices
of the High Courts, the NJAC recommends a judge based on their seniority among the High
Court judges. In addition to seniority, the NJAC considers factors such as aptitude, merit, and eligibility
standards outlined in the regulations. When nominating a regular High Court judge,
the NJAC seeks the opinion
of the Chief Justice of the relevant High Court, along with
the two most senior judges. The Chief Justice may also consult with other judges and legal professionals, if
required. The recommendations also take into
account the views of the Governor and Chief Minister. The NJAC plays a central
role in proposing candidates for the appointment of Chief
Justices and judges in the High Courts.
The President has the power to request a review of the NJAC's
recommendations. After conducting the review,
the President must ultimately make a decision
that aligns with the unanimous recommendation provided by the NJAC.
LANDMARK JUDGEMENTS REGARDING TO JUDICIAL APPOINTMENTS
·
S.P GUPTA V. UNION OF INDIA
The
case of S.P Gupta v. Union of India (1982) focused on the appointment as well
as transfer of judges and the issue
of judicial independence. One concern raised was the validity of government directives that prohibited the appointment of two judges.
The petitioners sought
entry to correspondence between the Law Minister, the Chief Justice of
Delhi, and the Chief Justice of India
to support their claims. However, the state argued that these documents were confidential under Article 74(2) of the
Indian Constitution and Section 123 of the Indian Evidence Act.
In
the Judges' Transfer Case, the Apex Court, with a majority of 4:3, ruled that
the Union Government, not the Chief
Justice of India, shall be ask regarding difference in constitutional functions. The Apex Court agreed with the clarity
of 'consultation' in Articles 124(2)
and 217(1) of the Constitution. It said that the
Chief Justice of India's role in consultation is advisory, and the transfer of judges between
High Courts shall be based
on discussion with the Chief Justice of India in the public interest, rather
than as a form of punishment. The Chief Justice of India must also consult with at least two senior judges to ensure
harmony between the government and
citizen rights. This case reinforced the judiciary's independence as guaranteed
by the Constitution.
In
the Supreme Court Advocates on Record
Association v. Union of India (1993)1 case, a Constitution Bench of nine judges reversed
the S.P. Gupta ruling with a 7:2 majority and established the "Collegium System" for the appointment and transfer of judges in the higher judiciary. This case clarified
that the term "consultation" would not diminish
the crucial role of the Chief Justice
of India (CJI) in judicial
appointments. It affirmed
that the CJI would have primary authority
in appointment and transfer matters,
reducing the executive's power in judicial
selections and upholding
the essence of Article
50 of the Constitution. The ruling aimed to remove personal preferences and political interference from the appointment process.
The
court's decision overturned the First Judges' Case by stating that when
disputes arise between the President
and the Chief Justice of India regarding judge appointments, the CJI's opinion, while not always given primacy,
would be decisive in making the final decision. The court also established that the collegium system would govern
the Chief Justice's powers, ensuring a system
of checks and balances.
To ensure
the judiciary's ultimate
authority in appointing judges to the Supreme Court and High Courts,
the Chief Justice of India would make decisions after consulting with the two
most senior judges of the Supreme Court. Similarly, for High Court judges, the Chief Justice of the respective High Court would only make
recommendations after consulting with the two most senior judges of that High Court.
The Supreme Court of India (IN RE:
APPOINTMENT & TRANSFER
OF JUDGES)
v. Civil Advisory Jurisdiction (1998)
The collegium system, responsible for nominating judges,
was expanded to include a five member body for the nomination of Supreme Court judges based on the President's recommendation. This body would
consist of the Chief Justice
of India and the four most senior
judges. Similarly, for the appointment of High Court judges, the collegium would be composed
of the Chief Justice of India and the two most senior judges.
In the Third Judges' Case, IN RE:
APPOINTMENT & TRANSFER OF JUDGES v.
Civil Advisory Jurisdiction (1998), a nine-judge bench of the Supreme Court established a consistent stance
on the collegium system. They concluded that the collegium
for appointing judges
should be comprised
of the Chief Justice and four
senior judges, deviating from the two senior judges
mentioned in the Second Judges'
Case. Furthermore, the Supreme Court determined that
the phrase "consultation with the Chief Justice of India" as 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 NATIONAL JUDICIAL APPOINTMENT COMMISSION DECLARED
UNCONSTITUTIONAL
The case of Supreme Court
Advocates-on-record Association v. Union of
India (2015), known as the 'Fourth Judges
Case', emerged from several petitions that questioned the constitutionality of both
the NJAC Act and the 99th Amendment.
Facts of the
case
The constitutionality of
the NJAC Act and the 99th Constitutional Amendment
was questioned in front of a five-judge Constitution
Bench through multiple petitions. These acts aimed to establish the
National Judicial Appointments Commission (NJAC) as the body responsible for selecting, appointing, and transferring
judges in the higher judiciary, as outlined in Articles 124(2) and 217(1) of the Constitution. The NJAC included the
Chief Justice of India, the two most senior Supreme Court judges, the Union Minister
for Law and Justice, and two distinguished individuals. It sought to replace the collegium system,
which comprised the Chief Justice
of India and a group of
the four most senior judges of the
Supreme Court.
The central issue of the case revolved around the constitutional validity of the NJAC
Act and the 99th Amendment Act.
Court Observation
The Supreme
Court noted that the inclusion
of the Chief Justice of India and the two seniormost Supreme
Court judges in the NJAC did not adequately represent
the judiciary, thus undermining its independence
in the process of appointing judges. The Court expressed concerns that the involvement of the Union Minister for Law and Justice in the NJAC violated the principles of separation of powers
and could lead to compromised judicial independence. There were fears that this arrangement could result in
reciprocal actions and biased decisions favoring
the political executive, posing a threat
to the judiciary's independence. As a result,
the NJAC Act and the 99th
Constitutional Amendment were struck down primarily due to the excessive
influence of the executive
branch.
Judgement of the case
In this case, the Court declared
the 99th Constitutional Amendment and the NJAC Act
unconstitutional and void with a 4:1 majority ruling.
The majority, comprising Justices Khehar, Lokur, Goel, and Joseph, held that the
involvement of the executive in judicial appointments undermined the judiciary's authority and violated
the principle of separation of powers between
the executive and judiciary.
However,
Justice Chelameswar dissented from the majority view, arguing that while
judicial independence is important,
it is not the only factor determining the judiciary's effectiveness. He contended that giving excessive weight
to the judiciary's opinions is not a constitutional requirement.
Although
the collegium system for judicial appointments was upheld by the majority, it
was acknowledged that improvements were necessary to enhance transparency and responsiveness. The majority recognized that the
existing collegium, consisting of the Chief Justice of India and two senior Supreme Court judges, did
not sufficiently uphold the judiciary's authority in appointments. Additionally, they agreed that the NJAC Act violated
the fundamental principles of judicial independence. As a result, the collegium process
for selecting Supreme Court and High Court judges was to be continued with necessary
enhancements.
Going forward, there is a need to
establish a permanent and independent organization to institutionalize the process of filling judicial vacancies. This
organization should have strong safeguards in place to protect the judiciary's independence and ensure its supremacy, while also considering the involvement of other stakeholders.
The organization should prioritize key principles such as independence, diversity, professionalism,
and integrity in its functioning. The current system of judges appointing judges forms the foundation of this process,
and it has been emphasized by the Supreme
Court that excessive executive intervention
should be avoided.
It
is evident that maintaining checks and balances is essential for all aspects of
a democratic government. The framers
of the Constitution recognized the significance of involving the executive in judicial appointments to
prevent the concentration of power in one branch of government. While the principle of separation of powers aims to keep each branch
independent, it also acknowledges the need for collaboration and interaction among them.
Therefore, moving forward involves
establishing a well-structured and independent organization that can effectively handle
the judicial appointment process. This will ensure the judiciary's independence, while also maintaining a balance of
power among the branches of government.
CONCLUSION
To
summarize, it can be stated that the NJAC presents a higher degree of judicial accountability compared to the collegium
system. However, it is crucial
to recognize the fine line between promoting judicial accountability and
compromising the independence of the judiciary. While the NJAC may offer some advantages over the unclear
collegium system, it may not be
the most suitable approach
for the appointment of judges.
The creation of a National Judicial
Appointments Commission (NJAC) through the 99th Constitutional
Amendment was deemed by the Supreme Court to infringe upon “judicial independence”, which is considered an essential part of the
basic structure of the
Constitution.
In 2015, a five judge Constitution Bench
declared the 99th Amendment to the constitution as unconstitutional. This 99th Constitution amendment was removed in 2015.
Article Information
99TH AMENDMENT ACT 2014
Authors: ADITI JHA, DURGESH KUMAR SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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