Part V: The Union

The Union Judiciary

Article 124A: National Judicial Appointments Commission

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(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following:

• The Chief Justice of India, Chairperson, ex officio;
• Two senior Judges of the Supreme Court next to the Chief Justice of India––Members, ex officio;
• The Union Minister in charge of Law and Justice––Member, ex officio;
• Two eminent persons nominated by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the House of the People.

Provided that one of the eminent persons shall be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities, or Women.

(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or invalidated on the grounds of any vacancy or defect in its constitution.

Explanations

Article 124A, introduced by the Constitution (Ninety-ninth Amendment) Act, 2014, marked a significant attempt to overhaul the process for appointing judges to the Supreme Court and High Courts. The article established the National Judicial Appointments Commission (NJAC), a body that aimed to ensure greater transparency and diversity in the judicial appointment process. However, this amendment was short-lived, as the Supreme Court struck it down in 2015, declaring it unconstitutional.

Clause-by-Clause Explanation

Clause (1) – Formation of the National Judicial Appointments Commission

Under Article 124A(1), the NJAC was proposed as a statutory body tasked with making recommendations for the appointment and transfer of judges to the higher judiciary. This body sought to create a balance between the judiciary, the executive, and other stakeholders.

Clause (2) – Members of the Commission

The NJAC was to comprise six members, representing both judicial and non-judicial interests:

• Chief Justice of India (CJI): As the Chairperson, the CJI leads the Commission.
• Two Senior Judges of the Supreme Court: These judges, next in seniority to the CJI, serve as ex officio members, bringing judicial insight to the Commission.
• Union Minister of Law and Justice: This member represents the executive branch, ensuring that the government's perspective is included in the appointment process.
• Two Eminent Persons: These members are nominated by a committee comprising the Prime Minister, the Chief Justice 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 formal Leader of Opposition). One of these eminent persons must be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities, or a woman, reflecting the Commission’s commitment to diversity and inclusion. These appointments are for a non-renewable term of three years.

Clause (3) – Duration of Eminent Persons' Membership

Eminent persons could serve for a non-renewable term of three years. This ensured a constant rotation of diverse perspectives in the NJAC, particularly from underrepresented groups.

Clause (4) – Legal Immunity of NJAC Decisions

Article 124A(2) provided immunity to the NJAC, ensuring that no judicial review or challenge could invalidate its actions due to vacancies or technical defects in its composition.

Real-Life Examples

• In 2015, the Supreme Court in Supreme Court Advocates-on-Record Association vs Union of India struck down the NJAC, citing the importance of judicial independence and declaring the NJAC unconstitutional.

Historical Context

The Ninety-ninth Amendment was introduced to address concerns over the judicial collegium system, which had faced criticism for being opaque and self-selecting. The NJAC was a response to demands for a more inclusive and transparent process. However, its short tenure ended when the Supreme Court struck it down in 2015 in the Supreme Court Advocates-on-Record Association vs Union of India case.

The Court’s decision reaffirmed that the independence of the judiciary was a part of the "basic structure" of the Constitution, which could not be compromised. By doing so, it preserved the collegium system, emphasizing that judges should have the final say in judicial appointments.

Judicial Interpretation and Precedents

The scope of Article 124A was defined in the landmark Supreme Court Advocates-on-Record Association vs Union of India case in 2015. The Supreme Court held that the NJAC violated the Constitution’s "basic structure" by allowing excessive executive influence in judicial appointments, thereby compromising judicial independence. The judgment reinstated the collegium system for judicial appointments.

Legislative History

Article 124A was introduced as part of the Constitution (Ninety-ninth Amendment) Act, 2014. It was an attempt to address the criticisms of the collegium system by creating a more inclusive body for judicial appointments. However, the Supreme Court declared this amendment unconstitutional in 2015.

Debates and Amendments

During the parliamentary debates on the Ninety-ninth Amendment, the government argued that the NJAC would bring much-needed transparency to judicial appointments. However, several opposition members and legal experts expressed concerns that the involvement of the executive in the appointment process could compromise the independence of the judiciary. Despite this, the amendment was passed with broad political support.

Following its enactment, the amendment faced immediate legal challenges, culminating in the 2015 Supreme Court judgment that struck down the NJAC. The Court held that judicial independence was a part of the Constitution’s "basic structure" and could not be compromised by involving the executive too heavily in the appointment process.

References

• The Constitution of India - Article 124A, National Judicial Appointments Commission.
• Supreme Court Advocates-on-Record Association vs Union of India (2015).
• The Constitution (Ninety-ninth Amendment) Act, 2014.