Article 124A

Article 124A, inserted by the Constitution (Ninety-Ninth Amendment) Act, 2014, sought to establish the National Judicial Appointments Commission (NJAC) as a constitutional body responsible for recommending appointments and transfers of judges to the Supreme Court and High Courts. The NJAC aimed to replace the Collegium System of judicial appointments that had evolved through judicial interpretation.
However, in the landmark Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court declared the NJAC Act and the 99th Constitutional Amendment unconstitutional, holding that they violated the basic structure of the Constitution, particularly the independence of the judiciary. Despite this ruling, the amendment has not been repealed by Parliament and continues to remain in the Constitution, albeit inoperative.

Background and Context

Prior to the 99th Amendment, appointments and transfers of judges were governed by Article 124 (for the Supreme Court) and Article 217 (for the High Courts). The process evolved into the Collegium System, established through judicial decisions — particularly the Second Judges Case (1993) and Third Judges Case (1998) — which vested primacy in the judiciary in appointing judges.
The NJAC was introduced as an attempt to make the process more transparent, participatory, and accountable by including members from outside the judiciary. It was intended to balance judicial independence with executive and lay representation in judicial appointments.

Composition of the National Judicial Appointments Commission

Under Article 124A(1), the NJAC was to consist of the following six members:

1. The Chief Justice of India (Chairperson, ex officio).
2. Two other senior-most judges of the Supreme Court, next to the Chief Justice of India.
3. The Union Minister of Law and Justice.
4. Two eminent persons to be nominated jointly by the Prime Minister, the Chief Justice of India, and the Leader of the Opposition (or the Leader of the largest Opposition party) in the Lok Sabha.

Article 124A(2) further provided that:

• The eminent persons would serve for a three-year term and would not be eligible for re-nomination.
• One of the two eminent persons had to belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities, or women.

Powers and Functions (Under Article 124B)

Although Article 124A established the NJAC, Article 124B detailed its powers and functions. The NJAC was entrusted with the responsibility to:

• Recommend appointments of judges of the Supreme Court and High Courts.
• Recommend transfers of Chief Justices and other judges of High Courts.
• Ensure suitability, merit, and diversity in judicial appointments.
• Formulate regulations for its working, subject to parliamentary approval.

Rationale Behind the NJAC

The introduction of the NJAC aimed to address criticisms of the Collegium System, which was often viewed as opaque and lacking accountability. The key objectives behind the NJAC were:

• To enhance transparency in judicial appointments.
• To introduce executive and civil participation in the selection process.
• To maintain a balance between independence and accountability of the judiciary.
• To prevent judicial exclusivity and perceived nepotism in appointments.

Judicial Challenge and the 2015 Judgment

The Constitution (99th Amendment) Act, 2014, along with the National Judicial Appointments Commission Act, 2014, was challenged before the Supreme Court in the Supreme Court Advocates-on-Record Association v. Union of India (2015) case.

Major Issues Raised:

1. Whether the NJAC violated the basic structure of the Constitution, particularly the principle of judicial independence.
2. Whether executive participation in judicial appointments diluted judicial primacy.
3. Whether the presence of “eminent persons” and the Law Minister compromised the impartiality of the selection process.

Supreme Court Verdict:

• By a 4:1 majority, a Constitution Bench of the Supreme Court struck down the NJAC as unconstitutional and void.
• The Court held that the 99th Amendment infringed upon the independence of the judiciary, which is part of the basic structure of the Constitution.
• The judgment reaffirmed the Collegium System as the constitutional mechanism for judicial appointments and transfers.

Key Observations:

• Judicial primacy in appointments is essential for maintaining judicial independence.
• The inclusion of executive and lay members could potentially compromise judicial integrity.
• The NJAC undermined the delicate balance of powers among the three organs of the state.

Constitutional and Legal Consequences

As a result of the 2015 judgment:

• The Collegium System was restored as the mechanism for judicial appointments and transfers.
• The 99th Constitutional Amendment and the NJAC Act were declared unconstitutional, but Parliament has not repealed them.
• Articles 124A, 124B, and 124C, though still part of the text of the Constitution, are inoperative and hold no legal effect.

Related Constitutional Articles

The NJAC was closely linked with several provisions governing judicial appointments:

• Article 124: Establishment and appointment of Supreme Court judges.
• Article 217: Appointment and conditions of service of High Court judges.
• Article 222: Transfer of judges between High Courts.
• Article 50: Directive Principle calling for the separation of the judiciary from the executive.

Key Supreme Court Judgments

• Supreme Court Advocates-on-Record Association v. Union of India (1993): Established the Collegium System and judicial primacy in appointments.
• Special Reference No. 1 of 1998: Clarified the functioning of the Collegium and the Chief Justice’s consultative role.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): Struck down the NJAC and reaffirmed judicial independence as part of the basic structure.
• Supreme Court Advocates-on-Record Association v. Union of India (2016): Directed the government to work with the judiciary to reform and improve the Collegium System.

Significance of Article 124A

Although rendered inoperative, Article 124A remains significant in India’s constitutional and political discourse for several reasons:

• It represents Parliament’s attempt to reform the judicial appointment system by introducing accountability and transparency.
• It triggered one of the most important constitutional debates on the basic structure doctrine and judicial independence.
• It underscores the tension between the legislature and judiciary over appointment powers — a defining feature of India’s separation of powers.
• It continues to influence discussions on judicial reforms and the need to improve the Collegium System.

Contemporary Relevance

Even after being struck down, the NJAC debate continues to resonate in public and legal discourse. Successive governments and law commissions have proposed reforms in the Collegium System, seeking greater transparency and institutional accountability.
While the judiciary maintains that independence must remain paramount, critics argue that complete judicial control over appointments lacks democratic oversight. Hence, Article 124A remains a symbol of the ongoing constitutional dialogue between judicial autonomy and democratic accountability.

Conclusion

Article 124A of the Indian Constitution, though declared unconstitutional, marks a significant chapter in India’s constitutional evolution. It represented an ambitious attempt to balance judicial independence with executive and public participation in appointments. The Supreme Court’s 2015 judgment reaffirmed the Collegium’s primacy, declaring that any dilution of judicial independence would undermine the basic structure of the Constitution.