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
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
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:
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
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99th amendment is the first and only one to be repealed to date.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:
- A Judge may, by writing under his hand addressed to the President, resign
- 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
- 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
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
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.
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.
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.
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
- 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