Introduction

The 99^th Amendment Constitutional Amendment Act, 2014 which established the National Judicial Appointment Commission (NJAC) and the NJAC Act, was passed by Parliament in 2014.

The NJAC Act, 2014

• This Act provides for a transparent and broad-based process of selection of Judges of the Supreme Court and High Courts replacing the collegium system.
• This Act provides for the insertion of Articles 124A, 124B and 124C to the Constitution of India, 1950 (COI).

Article 124A of the COI

• This Article deals with the composition of the NJAC. It states that -

(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely: —

(a) The Chief Justice of India as the ex officio chairperson.

(b) Two other senior Judges of the Supreme Court next to the Chief Justice of India as the ex officio members.

(c) The Union Minister in charge of Law and Justice as the ex officio member.

(d) Two eminent persons to be nominated by the 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 single largest Opposition Party in the House of the People as 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 renomination.

(2) 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.

Article 124B of the COI

• This Article deals with the functions of NJAC.
• It states that 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.
  • To ensure that the person recommended is of ability and integrity.

Article 124C of the COI

• This Article deals with the power of parliament to make law.
• It states that the parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.

Constitutionality of NJAC

• In 2015, the Supreme Court in the case of Supreme Court Advocates o-Record Association and Anr. v. Union of India declared both the 99^th Constitutional Amendment Act 2014 and the NJAC Act, 2014 as unconstitutional and null and void.
• It was contended that both the acts were unconstitutional and invalid.
• It argued that the 99^th Amendment Act which provided for the creation of the NJAC took away the primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or suspended by majority of three non-Judge members.
• It stated that the Amendment severely damaged the basic structure of the Constitution of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part.
• It also contended that the NJAC Act was itself void and ultra vires of the Constitution
• The verdict brought back the primacy of the collegium system of judges appointing judges.