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The Amendment that wasn't

The word play in the title may suggest high plagiarism from the popular news show, 'The Week That Wasn't'. But the article is not going to be a spoof of any living person. It's merely a critical analysis on the 99th Constitutional Amendment.

In India, there has always been controversy surrounding the selection of judges for the judiciary. How are they going to be chosen? Whether they are qualified to hold that position? Are the Committees and those chosen to appoint them competent and well-qualified? These queries do come up when addressing this matter.

The 99th Constitutional Amendment ensues, which marks a significant development in how India deals with judicial appointments and has a vital role in the Indian Constitution. First, to understand the meaning of a constitutional amendment, it is a means of updating a few essential features or changing a few sections to better meet modern requirements. It is imperative to permit a constitutional modification in order to reflect contemporary reality and necessity.

Article 368 of the Constitution provides the Parliament with special powers to amend the Constitution.

According to this Article, there are 3 ways to amend the Constitution:
By simple majority:
A majority of more than 50% of the members of the House who are present and voting. by special majority:
A majority of ⅔ of the members present and voting ratification by at least half of the states:
More than half of the states present in India must ratify such amendment. The 99th Constitutional Amendment established the National Judicial Appointment Commission (NJAC) in the year 2014. The NJAC was a proposed body which was responsible for the recruitment, appointment and transfer of judicial and legal officers and legal employees under the government of India and in all the respective state governments.

This bill outlines the process that the NJAC must adhere to when it recommends certain candidates for the appointment as the Chief Justice Of India and other Supreme Court Judges, as well as the Chief Justices and other judges of the High Courts.

What is the 99th Amendment?

Out of the 105 existing constitutional amendments made to our constitution, the 99th amendment is the first and only one to be repealed to date. The Union Government of India established the National Judicial Appointment Commission by introducing the 99th Constitutional Amendment, which was approved by a two-thirds vote in each house of parliament. Article 124 states that SC shall consist of a total of seven additional judges and also (and more importantly) the Chief Justice of India (CJI).

If and only if the president has sealed and signed, can the supreme court justice be appointed. Article 217 says Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that:
  1. A Judge may, by writing under his hand addressed to the President, resign his office;
  2. A Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court;
  3. The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India (Central Government)
The Indian Constitution's Articles 124, 217, and 222 regulate the appointment of judges to the Supreme Court and the High Court as well as their transfer between the High Courts. Before the NJAC was established, the Chief Justice and other judges were consulted when the President appointed justices. So, after speaking with the Chief Justice, the President made the necessary choices.

The NJAC Act specifies the procedures that the National Judicial Appointment Commission must apply while suggesting individuals to take up the position of a judge in both levels of the court and it also determines the course of transfers of the judges. Based on their experience, talent, merit, and any further requirements that may be specified in NJAC regulations, judges must be nominated for candidacy. The nomination shall be made by the President in accordance with the foregoing recommendations.

On the 65th anniversary of Republic Day, Parliament passed the National Judicial Appointments Commission Act of 2014, which details the procedures for appointing Supreme Court and High Court chief justices and transferring judges. The NJAC Act 2014 establishes a procedure for selecting Supreme Court and High Court judges. The Act requires the NJAC to recommend a senior Supreme Court judge to be appointed as Chief Justice of India. He must be regarded as qualified for the position.

NJAC will make recommendations for candidates based on their qualifications, merit, and other criteria specified in the rules governing the selection process. There are certain cases relating to this constitutional amendment which are landmark judgments relating to judicial appointments. One of which is S.P Gupta v. Union of India (1982) dealt with the nomination and removal of judges, as well as the independence of the court.

One concern raised was the legality of Central Government directives prohibiting the appointment of more than two judges. The petitioners sought access to any correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India to back up their claim. The state, on the other hand, claimed that these documents were protected by Article 74(2) of the Indian Constitution 1949, which prohibits judicial review of the Council of Ministers' advice to the President, and Section 123 of the Indian Evidence Act 1872, which prohibits the use of unpublished official records on state affairs as evidence.

One more important case that replaced the collegium system was The Supreme Court of India (In Re: Appointment & Transfer Of Judges) v. Civil Advisory Jurisdiction the collegium system was increased to a five-member body for the nomination of Supreme Court judges on the President's recommendation. This body would be composed of the Chief Justice of India and the four senior-most judges.

The Chief Justice of India and the two senior-most judges would make up the collegium system's body for the appointment of High Court justices; In the third judge's case, the Supreme Court of India, a nine-judge Supreme Court bench stated a consistent opinion regarding the collegium system of appointment of judges with the Chief Justice and of four senior judges rather than the two mentioned in the second judge's case.

The Supreme Court also held that the word "consultation with the Chief Justice of India," which is mentioned in Articles 217(1) and 222(1) of the Constitution, requires a majority opinion of the judges to appoint the Chief Justice.

Critical Analysis
In order to critically analyse the 99th amendment, we must first look at the legislative intent behind the introduction of the Act. The National Judicial Appointments Commission (NJAC) was brought in as a replacement to the already existing collegium system which was established after the Second Judges' Case in 1993. The word "primacy" was decided to mean that the judiciary would have control over the appointment of judges.

The main arguments for the NJAC are:

The basic structure of the Constitution which includes the separation of powers between the legislature, executive and the judiciary is still maintained as the CJI has the most important role to play. It upholds the values and principles of democracy, one of which requires that no organ of the State enjoys absolute freedom. Consequently, the Amendment seeks to bring in a sense of transparency in the appointment of judges which upholds the need for checks and balances.

The question as to whether the legislature has any sway over the NJAC can be answered in the affirmative. Article 124C gives Parliament the power to govern the functioning of the NJAC by bringing about ordinary laws. This means that the legislature can change the powers of the NJAC which once again contravenes the theory of separation of powers.

It may even lead to an elected dictatorship and a compromised judiciary as a worst- case scenario. Another feature of Article 124A is that it provides for two eminent persons to be part of the NJAC, who would be nominated by a Committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition.

It also lays down guidelines that one of the eminent persons must be a woman or someone belonging to a Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC) or any other defined minority. Arguments for this would be: The eminent persons would represent the people and society at large and increase their confidence in the judiciary. They would act as a check against arbitrary misuse of power.

They would be individuals who would be able to approach things with an objective and neutral frame of mind. Arguments against the inclusion of eminent personalities: The definition of who would qualify as an eminent person as mentioned under Article124A is rather unclear and vague as there is no selection criteria provided. The independence of the judiciary may be compromised as these persons may have vested interests.

These eminent persons would also not be able to ascertain the competency and proficiency of judges as they have no experience in the field. Some of the arguments against the collegium system include : Opaqueness and a lack of transparency - The system of nominations and recommendation is completely shrouded in secrecy and is not public knowledge.

There is no transparency in the workings of the collegium. Scope for nepotism Embroilment in public controversies Overlooks several talented junior judges and advocates - This system appoints judges solely based on recommendations and does not take into account the merit of the judges.

The SC acknowledged the need for changes in the existing system and constituted a Committee to look into the same. It also brought into light the existing problems of the collegium system especially with regard to vacancy of judges in various High Courts across the country and the Supreme Court itself. This can also be linked to the mammoth number of active cases being argued in court at present. The NJAC was an attempt to bridge this gap. Further proactive measures need to be taken in order to streamline the process.

End-Note (Case Laws/References):
  • Article 368 of the Constitution of India, 1949 - Types of Majorities in Indian Parliament
  • National Judicial Appointments Commission
  • Article 217 of the Constitution of India
  • L M Lakshmi Priya- 99th Constitutional Amendment
  • S. P. Gupta vs. Union of India AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
  • Article 74(2) in The Constitution Of India 1949
  • Section 123 in The Indian Evidence Act, 1872

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