This article discusses the 99th Amendment to the Constitution of India concerning the legal and legislative history of judicial appointments – a contentious issue concerning the independence of the judiciary.
Introduction
Article 368 of the Indian Constitution allows the Parliament to amend certain provisions of the Indian Constitution while keeping its fundamental nature the same. The article gives three types of Amendments; the first type is an Amendment by a simple legislative majority; the second type is an Amendment by a special Parliamentary majority and the third type is an approval of a special majority and by half of the total state.
Our Indian Constitution has been amended several times wherein one such Amendment, when the Parliament sought to bring NJAC (National Judicial Appointment Commission). This was introduced in the 99th constitutional Amendment, 2014. This was introduced by the addition of Article 124A in the Indian Constitution which dealt with the features of the commission.
On October 16, 2015, this constitutional Amendment was held unconstitutional with a 4-1 majority in the Supreme Court as the National Judicial Appointment Commission Act violates the independence of the Judiciary.
Constitutional provisions relating to the appointment of judges
Article 124 – President appoints Supreme Court judges after consultation with judges of High Courts and the Supreme Court and the Chief Justice of India.
Article 217 – In the appointment of High Court judges – The President should consult the CJI, Governor, and Chief Justice of the High Court concerned.
NJAC
The National Judicial Appointment Commission was put forth to make appointments of High Court and Supreme Court judges including Chief justices more transparent. The bill tried to replace the present collegium system of appointing the judges of the Supreme Court and 24 High Courts by establishing an appointing commission where the executive will be in power.
Constitution of NJAC
- Chairperson and ex-officio person – Chief Justice of India.
- Two senior judges of the Supreme Court.
- Union Minister of Law and Justice – ex – officio.
- Two eminent persons – nominated by a committee consisting of CJI, Prime Minister and leader of opposition in Lok Sabha. Out of the two persons, one has to be from SC, ST or OBC or minority community with a tenure of three years and no reappointment.
Collegium system
For the appointment of a judge of the Supreme Court and transfer of High Court judges, the Chief Justice of India shall consult with a collegium of four senior-most judges of Supreme Court and for High Court judges appointment the Chief Justice shall consult with two senior-most judges of the Supreme Court
History of the collegium system
First Judges Case, 1981: It was held that the recommendation made to the President by CJI can be refused for “cogent reason” and hence giving an upper hand to the executive.
Second Judges Case, 1993: It led to the creation of the collegium system. It was held that the CJI has to be given a prime role in appointments
Third Judges Case, 1998: The Supreme Court framed guidelines for the functioning collegium system thereby solving the problem of executive interference.
Collegium System and NJAC
The collegium and the central government exchanges a recommendation of the list of names of judges or advocates and the collegium compiles it and sends the file to the government for final approval. If the collegium resends the list again then the government has to assent to it, there is no fixed time limit and this was the reason why it takes so long to appoint judges. For the faster appointment of judges and to increase transparency and to reduce nepotism in the appointment of judges, the 99th constitutional Amendment introduced the NJAC.
Constitutionality of NJAC or the Article 124A
Arguments for
The basic structure doctrine of the Constitution is maintained as the chairperson of NJAC is the CJI, which ensures the separation of executive and judiciary and the independence of the judiciary. Additionally, the NJAC is on par with democracy which is also a part of basic structure doctrine and it ensures that no organ should enjoy absolute freedom.
Arguments against
In the Second Judge’s Case, it was held that CJI has the prime position in the appointment of judges and included in the part of basic structure doctrine and hence the Amendment brought by the Parliament is unconstitutional.
Held: The 99th Constitutional Amendment is held unconstitutional.
Why Supreme Court struck down NJAC
Article 124A failed to uphold the independence of the judiciary which is a part of basic structure doctrine.
Article 124A(1) is also ultra vires because it includes the union minister in charge of law and justice as an ex-officio member of NJAC.
Therefore the Amendment went over and above the independence of the judiciary and separation of power.
Effect of judgement
The judgement underestimated the authority of Parliament to legislate on matters relating to the judiciary. This verdict upheld the continuance of the collegium system and seeks to bring reforms ensuring transparency and a fair recruitment process in the appointment of judges.
Conclusion
Hence, the Supreme Court has agreed to improve the efficacy of the appointment of judges and certain possibilities to do so are as follows:
- Appointment system can be opened in RTI so that any citizen can have access.
- Certain institutional procedures have to be laid down by the Supreme Court for transparent functioning of the collegium.
- Applications for the appointment of High Court judges should be followed.
- Laying down Minimum eligibility criteria.
- Appointment of ad hoc or additional judges to clear up pending cases.
- Setting up a permanent commission to scrutinize details of candidates and recommend them to collegium after looking into the complaints of dishonesty and lack of integrity in the candidates.
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