Article 124A was inserted into the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014. Its purpose was to replace the collegium system for the appointment of judges to the Supreme Court and High Courts with a new body known as the National Judicial Appointments Commission (NJAC). This amendment represented a significant attempt by the legislature to have a greater say in judicial appointments, which had been predominantly managed by the judiciary through the collegium system for several decades following Supreme Court judgments.
However, the constitutional validity of the Ninety-ninth Amendment Act, 2014, and consequently Article 124A, was challenged before the Supreme Court. In 2015, the Supreme Court, in the Supreme Court Advocates-on-Record Association v. Union of India case (commonly known as the Fourth Judges Case), declared the amendment and Article 124A unconstitutional, holding that they violated the basic structure of the Constitution, specifically the independence of the judiciary. As a result, Article 124A is currently inoperative, and the collegium system continues to govern judicial appointments.
Original Text
124A. National Judicial Appointments Commission.
(1) There shall be a National Judicial Appointments Commission.
(2) The National Judicial Appointments Commission shall consist of the following persons, namely:-
(a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior-most Judges of the Supreme Court next to the Chief Justice of India - Members, ex officio; (c) the Union Minister in charge of Law and Justice - Member, ex officio; (d) two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest opposition Party in the House of the People - Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities or women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for re-nomination.
(3) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
Detailed Explanation
Article 124A, introduced by the 99th Constitutional Amendment Act, 2014, sought to fundamentally alter the mechanism for appointing judges to the higher judiciary in India. It proposed the creation of the National Judicial Appointments Commission (NJAC) as the sole body responsible for recommending individuals for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts, and Judges of High Courts, as well as for transfers of High Court judges.
Sub-clause (1) of Article 124A simply declared the establishment of the National Judicial Appointments Commission.
Sub-clause (2) meticulously laid out the composition of the NJAC. It was designed to be a six-member body, reflecting a mix of judicial and executive/civil society representation:
- Judicial Members: The Chief Justice of India was designated as the ex officio Chairperson. Additionally, the two senior-most Judges of the Supreme Court immediately following the Chief Justice of India were to be ex officio Members. This gave the judiciary three out of the six seats.
- Executive Member: The Union Minister in charge of Law and Justice was included as an ex officio Member, representing the executive branch of the government.
- Eminent Persons: Two eminent persons were to be nominated as Members. The selection process for these eminent persons was also specified: they were to be chosen 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 single largest opposition party if there was no recognized Leader of Opposition). This inclusion aimed to bring external perspectives into the appointment process.
- Diversity Provision: A crucial proviso mandated that one of the two eminent persons nominated must belong to a Scheduled Caste, Scheduled Tribe, Other Backward Class, minority, or be a woman. This was an attempt to ensure diversity in the commission’s composition.
- Tenure and Eligibility: Another proviso stipulated that the eminent persons would serve for a fixed term of three years and would not be eligible for re-nomination, intended to prevent entrenched interests.
Sub-clause (3) contained a procedural safeguard, stating that the acts or proceedings of the NJAC would not be invalidated merely due to a vacancy in its composition or a defect in its constitution. This provision aimed to prevent legal challenges based on minor procedural irregularities.
The underlying principle behind the NJAC was to introduce greater transparency, accountability, and broader consultation (involving the executive and civil society) in the judicial appointment process, moving away from the collegium system which was criticized for its lack of transparency and being a system of judges appointing judges. However, as noted, the Supreme Court ultimately found this structure to impinge upon judicial independence, a core aspect of the Constitution’s basic structure, leading to Article 124A being rendered void.
Detailed Notes
- Article 124A was inserted by the 99th Constitutional Amendment Act, 2014.
- It aimed to establish the National Judicial Appointments Commission (NJAC).
- The NJAC was intended to recommend persons for appointment as judges of the Supreme Court and High Courts.
- The NJAC was proposed as a six-member body:
- Chief Justice of India (Chairperson, ex officio).
- Two senior-most Supreme Court Judges (Members, ex officio).
- Union Minister in charge of Law and Justice (Member, ex officio).
- Two eminent persons (Members), nominated by a committee of PM, CJI, and Leader of Opposition/single largest opposition party leader in Lok Sabha.
- One of the nominated eminent persons had to belong to SC, ST, OBC, minorities, or be a woman.
- Eminent persons were to be nominated for a term of three years and were not eligible for re-nomination.
- The article stated that NJAC’s acts or proceedings would not be invalidated due to vacancy or defect in constitution.
- This article and the 99th Amendment were challenged before the Supreme Court.
- In 2015, the Supreme Court in the Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India) declared the 99th Amendment and Article 124A unconstitutional.
- The ground for striking down was violation of the basic structure of the Constitution, specifically the independence of the judiciary.
- Consequently, Article 124A is currently inoperative.
- The Collegium system for judicial appointments, which existed prior to the 99th Amendment, was restored and continues to be in operation.
Additional Comments
- Article 124A represented a significant legislative attempt to reform the process of judicial appointments, which had become controversial under the collegium system due to perceived lack of transparency and accountability.
- The Supreme Court’s decision to strike down Article 124A highlighted the doctrine of the basic structure of the Constitution and the principle of separation of powers, emphasizing that judicial independence is a core component that cannot be encroached upon by legislative or executive action beyond a certain point.
- The judgment sparked a debate regarding the balance between judicial independence and judicial accountability, as well as the respective roles of the judiciary, executive, and legislature in the appointment process.
- Although Article 124A is not currently in force, understanding its provisions and the reasons for its striking down is crucial for comprehending the evolution of judicial appointments in India and the dynamics between different branches of government.
- The eminent persons clause with the diversity requirement reflected an attempt to broaden representation in the selection process, although the mechanism of their selection by a committee including political figures was a point of contention regarding its potential impact on independence.
Summary
Article 124A, introduced by the 99th Constitutional Amendment in 2014, aimed to establish the National Judicial Appointments Commission (NJAC) to handle the appointment and transfer of judges for the Supreme Court and High Courts. It proposed a six-member body comprising the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons nominated by a committee including the Prime Minister and the Chief Justice of India. The article also included provisions for diversity among the eminent persons and procedural validity. However, in 2015, the Supreme Court declared Article 124A and the related amendment unconstitutional, ruling that they violated the independence of the judiciary, which is part of the basic structure of the Constitution. As a result, Article 124A is not in effect, and the collegium system continues to be used for judicial appointments.