Part V: The Union

The Union Judiciary

Article 124B: Functions of the National Judicial Appointments Commission

--- Original Article ---

It shall be the duty of the National Judicial Appointments Commission to—

• Recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts, and other Judges of High Courts;
• Recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court;
• Ensure that the person recommended is of ability and integrity.

Explanations

Article 124B was introduced as part of the Constitutional framework to establish the National Judicial Appointments Commission (NJAC) for regulating the appointment and transfer of judges to the higher judiciary in India. It aimed to democratize the appointment process by involving both judicial and executive members. However, this amendment was struck down by the Supreme Court, marking a significant moment in Indian legal history.

Clause-by-Clause Explanation

Clause (a) – Recommendation of Judicial Appointments

The NJAC was tasked with recommending appointments for the Chief Justice of India, other Judges of the Supreme Court, Chief Justices, and Judges of the High Courts. This was intended to bring transparency and accountability to the process of judicial appointments, previously overseen solely by the judiciary through the collegium system.

Clause (b) – Transfer of Judges

The NJAC was also responsible for recommending transfers of Chief Justices and other judges between High Courts. This clause sought to ensure a more structured approach to transfers, addressing concerns about arbitrary decisions in the past.

Clause (c) – Integrity and Ability of Appointees

It was the NJAC’s duty to ensure that the recommended individuals possessed the necessary qualifications, ability, and integrity to serve as judges. This clause emphasized the importance of merit-based appointments, aiming to maintain the high standards of the judiciary.

Real-Life Examples

• In 2015, the ruling in the Supreme Court Advocates-on-Record Association vs Union of India case highlighted a deep divide between the judiciary and the executive. The Court held that the NJAC violated the principle of judicial independence, a fundamental feature of the Constitution. This ruling demonstrated the judiciary's protection of its autonomy against executive interference.

Historical Context

The introduction and subsequent nullification of Article 124B reflect the ongoing tension between the executive and the judiciary in India. The collegium system, which was challenged by the NJAC, continues to face calls for reform due to concerns about transparency. The NJAC episode remains a pivotal moment in the evolution of India’s judicial appointment process, emphasizing the judiciary's insistence on preserving its independence.

Judicial Interpretation and Precedents

The Supreme Court in the Supreme Court Advocates-on-Record Association vs Union of India case in 2015 struck down Article 124B, along with the entire Ninety-ninth Amendment, stating that it violated the independence of the judiciary. The Court emphasized that judicial independence is part of the Constitution's "basic structure," which cannot be amended.

Legislative History

Article 124B was introduced through the Constitution (Ninety-ninth Amendment) Act, 2014, as part of the NJAC framework. The NJAC was designed to replace the collegium system with a more transparent and accountable process involving both judicial and executive input. However, the Supreme Court invalidated the amendment in 2015, reinstating the collegium system for judicial appointments.

Debates and Amendments

The introduction of the NJAC was seen as a major reform aimed at increasing transparency in judicial appointments. However, during the debates, several members of the legal community expressed concerns that the NJAC could compromise the judiciary's independence by giving the executive too much influence over appointments. Ultimately, the Supreme Court struck down the Ninety-ninth Amendment and Article 124B, emphasizing that judicial independence is a fundamental part of the Constitution’s "basic structure."

References

• The Constitution of India - Article 124B, Functions of the NJAC.
• Supreme Court Advocates-on-Record Association vs Union of India (2015).
• The Constitution (Ninety-ninth Amendment) Act, 2014.