99th Constitutional Amendment Act

The 99th Constitutional Amendment Act of 2014 was a significant milestone in the history of India’s judicial appointments system. The Amendment sought to replace the existing collegium system, which allowed judges to appoint judges, with a more institutionalised process through the creation of the National Judicial Appointments Commission (NJAC). 

The intent was to make judicial appointments more transparent, accountable, and inclusive. However, the amendment was struck down by the Supreme Court of India in 2015, as it was found to violate the fundamental structure of the Constitution, specifically the independence of the judiciary.

In this article, we will explore the genesis of the 99th Constitutional Amendment, its key provisions, the reasons behind its eventual invalidation by the Supreme Court, and its implications on the judicial appointment process in India.

Background: Judicial Appointments in India

The collegium system for judicial appointments was developed through a series of Supreme Court judgements, beginning with the First Judges’ Case (S.P. Gupta v. Union of India, 1982). This system, while not explicitly mentioned in the Constitution, was established by the judiciary to ensure that appointments to the Supreme Court and High Courts were made independently of executive influence.

The collegium system was expanded in the Second Judges’ Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993) and further extended in the Third Judges’ Case (1998), when the Supreme Court ruled that the Chief Justice of India (CJI) and four senior-most judges would form the collegium to recommend judicial appointments and transfers. Despite the absence of any statutory backing, this system became the prevailing mechanism for judicial appointments in India.

While the collegium system ensured judicial independence, it was criticised for being opaque, lacking clear criteria for appointments, and not being accountable to the public. This led to calls for reforms that would make the process more transparent and inclusive.

The Ninety-ninth Constitutional Amendment

In response to criticisms of the collegium system, the government introduced the Constitution (Ninety-ninth Amendment) Act, 2014, which sought to replace the collegium with the National Judicial Appointments Commission (NJAC). The aim of the NJAC was to make the appointment process more transparent, balanced, and accountable, by involving both judicial and non-judicial elements in the decision-making process.

The 99th Amendment was seen as a compromise between judicial independence and executive oversight, bringing in non-judicial experts, such as eminent persons, into the judicial appointment process. The amendment was seen as an attempt to bring more diversity and public accountability to judicial appointments.

Passage of the Amendment

The bill was passed by both Houses of Parliament with overwhelming support, reflecting a political consensus on the need for judicial reforms. The bill was then ratified by 16 of the 29 state legislatures, including states like Goa, Rajasthan, Tripura, Gujarat, and Telangana. After receiving the President’s assent, it came into force on 13 April 2015.

However, despite the widespread support, the amendment faced significant opposition from the judiciary, leading to a legal challenge in the Supreme Court.

Key Provisions of the 99th Constitutional Amendment

Changes to Article 124 and Insertion of Article 124A

One of the most significant provisions of the 99th Amendment was the insertion of Article 124A, which created the NJAC. The Amendment modified Article 124, which deals with the establishment and constitution of the Supreme Court, and inserted new provisions to provide for the composition and functioning of the NJAC.

Article 124A created the National Judicial Appointments Commission (NJAC), which was to consist of the following members:

1. Chief Justice of India (CJI) – as the Chairperson.
2. Two senior-most Supreme Court judges – as members.
3. Union Minister for Law and Justice – as a member.
4. Two eminent persons – to be nominated by a committee comprising the CJI, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The two eminent persons were required to represent diverse sections of society, including minorities, Scheduled Castes, Scheduled Tribes, Other Backward Classes, and women.

The aim of this composition was to bring diversity and accountability to the process while ensuring judicial primacy.

Functions of the NJAC

Article 124B outlines the functions of the NJAC, which included:

• Recommending candidates for appointments to the office of the Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts, and other High Court judges.
• Recommending the transfer of Chief Justices and other judges of High Courts from one High Court to another.
• Ensuring the integrity and ability of the candidates recommended for judicial appointments.

The NJAC was also tasked with ensuring that the process of judicial appointments adhered to the principles of transparency and merit.

Changes to Other Articles of the Constitution

The 99th Amendment brought several changes to other articles of the Constitution, including:

• Article 127 (appointment of ad-hoc judges): The CJI’s power to appoint ad-hoc judges was replaced with a reference to the NJAC.
• Article 128 (attendance of retired judges at Supreme Court sittings): Replaced the reference to the CJI with the NJAC.
• Articles 217 and 222 (appointment and transfer of High Court judges): These articles were amended to incorporate the recommendation of the NJAC in the appointment and transfer of High Court judges.
• Article 231 (establishment of a common High Court for two or more states): This article was amended to remove references to the CJI’s consultation in the establishment of such High Courts.

The amendments aimed to institutionalise a transparent and collaborative approach to judicial appointments.

The Supreme Court’s Judgement

The introduction of the NJAC was met with opposition from various quarters, especially from within the judiciary. The Supreme Court Advocates-on-Record Association (SCAORA) and others filed a petition challenging the constitutionality of the 99th Amendment. The petitioners contended that the creation of the NJAC undermined the independence of the judiciary, a fundamental feature of the Indian Constitution.

The matter was heard by a five-judge bench of the Supreme Court, headed by Justice J.S. Khehar. On 16 October 2015, the Court delivered a 4:1 majority judgement, striking down the 99th Amendment and the NJAC Act as unconstitutional.

Key Findings of the Supreme Court

1. Violation of Judicial Independence: The Court held that the 99th Amendment and the NJAC Act violated the basic structure doctrine of the Indian Constitution, which guarantees the independence of the judiciary. The inclusion of the Union Minister for Law and Justice in the NJAC and the reduced role of judges in the appointment process undermined judicial primacy.
   
2. Inadequate Representation of the Judiciary: The Court observed that the composition of the NJAC, with only three out of six members being judges, was insufficient to maintain judicial independence. The collegium system, which had evolved over the years, ensured that judges had a decisive role in judicial appointments.
   
3. Infringement on Separation of Powers: The involvement of the executive, represented by the Law Minister, was found to interfere with the judiciary’s independence. The Court emphasised that the separation of powers was a core principle of the Indian Constitution.
   
4. Restoration of the Collegium System: As a result of this judgement, the collegium system was restored, and the Court directed that it be improved in terms of transparency and accountability. However, the collegium system, with its inherent opacity, continues to be the mode of judicial appointments.

Dissenting Opinion

Justice Chelameswar dissented, arguing that the involvement of the executive in the judicial appointment process did not necessarily undermine judicial independence. He believed that reforms to the collegium system were necessary to make the process more accountable and transparent.

Conclusion

The 99th Constitutional Amendment was an ambitious attempt to reform the judicial appointment system in India. While the intent behind the NJAC was to make the process more inclusive and transparent, it was ultimately struck down by the Supreme Court for violating the basic structure of the Constitution, particularly the principle of judicial independence.

The judgement reaffirms the judiciary’s central role in judicial appointments but also underscores the need for greater transparency in the process. Moving forward, it is essential that reforms are undertaken to make the collegium system more transparent and accountable, while preserving judicial independence.