Article 124B

Article 124B, introduced by the Constitution (Ninety-Ninth Amendment) Act, 2014, defined the functions and powers of the National Judicial Appointments Commission (NJAC) — a constitutional body intended to reform the process of appointment and transfer of judges in India’s higher judiciary. The NJAC was envisaged as a replacement for the Collegium System, with the objective of promoting transparency, accountability, and inclusivity in judicial appointments.
However, the Supreme Court, in its landmark judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), declared both the 99th Constitutional Amendment and the NJAC Act unconstitutional, restoring the Collegium System. Despite being inoperative, Article 124B remains part of the constitutional text, symbolising a significant episode in India’s constitutional evolution concerning the balance between judicial independence and democratic accountability.

Constitutional Context and Purpose

The 99th Constitutional Amendment introduced three new articles — 124A, 124B, and 124C — to create a formal constitutional mechanism for the appointment and transfer of judges in the Supreme Court and High Courts.

• Article 124A established the composition of the NJAC.
• Article 124B outlined its functions and responsibilities.
• Article 124C empowered Parliament to make laws regulating the NJAC’s working.

Article 124B was specifically designed to institutionalise a transparent and participatory system for recommending judicial appointments, involving representatives from the judiciary, executive, and the public.

Text and Primary Functions of Article 124B

According to Article 124B, the National Judicial Appointments Commission shall have the following functions:

1. Recommending Appointments:The NJAC was empowered to recommend the names of suitable candidates for appointment as —
   • The Chief Justice of India (CJI),
   • Other Judges of the Supreme Court,
   • Chief Justices of High Courts, and
   • Other Judges of High Courts.
2. Recommending Transfers:The Commission was also authorised to recommend the transfer of Chief Justices and Judges from one High Court to another.
3. Ensuring Merit and Suitability:The NJAC was required to ensure that its recommendations were based on merit, ability, integrity, and balanced representation from various regions and communities.
4. Framing Regulations:Subject to parliamentary law, the NJAC could lay down procedures for its operations, including consultation methods, evaluation of candidates, and selection criteria.

Through these functions, Article 124B intended to establish a structured, transparent, and accountable framework for judicial appointments, marking a shift from the purely judicial model of the Collegium.

Composition of the NJAC

The composition of the NJAC, as defined in Article 124A, included:

• The Chief Justice of India (Chairperson, ex officio),
• Two senior-most Judges of the Supreme Court,
• The Union Minister of Law and Justice, and
• Two eminent persons nominated jointly by a committee comprising 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.

One of the two eminent persons was to belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities, or women.
This pluralistic composition was meant to ensure diversity and inclusivity in judicial appointments, with the participation of both judicial and non-judicial members.

Rationale and Objectives Behind Article 124B

The introduction of the NJAC was driven by a perceived need to:

• Enhance transparency: Address criticisms of the Collegium System for its secrecy and lack of accountability.
• Ensure broader participation: Involve the executive and eminent members of civil society in the selection process.
• Maintain judicial independence: Balance the roles of different branches of government in judicial appointments without compromising autonomy.
• Reinforce accountability: Make the appointment process more open and subject to collective scrutiny.

By institutionalising these objectives, Article 124B aimed to create a more democratic and participatory system for judicial appointments and transfers.

Judicial Review and the 2015 Supreme Court Judgment

The constitutional validity of the NJAC and the 99th Amendment was challenged in the Supreme Court Advocates-on-Record Association v. Union of India (2015) case.

Key Issues Before the Court:

1. Whether the NJAC and the 99th Amendment violated the basic structure of the Constitution.
2. Whether the presence of executive and non-judicial members compromised judicial independence.
3. Whether judicial primacy in appointments was an essential feature of the Constitution.

Supreme Court’s Decision:

• In a 4:1 majority judgment, the Supreme Court struck down both the 99th Amendment and the NJAC Act as unconstitutional and void.
• The Court held that judicial independence is part of the basic structure of the Constitution, and any attempt to dilute it would be invalid.
• The inclusion of the Law Minister and eminent persons was deemed to introduce potential executive and political influence in the judicial appointment process.

The judgment restored the Collegium System, reaffirming the primacy of the judiciary in matters of appointments and transfers.
Justice J. Chelameswar, the lone dissenter, supported the NJAC, criticising the Collegium’s opacity and lack of accountability.

Related Constitutional Articles

Article 124B is closely linked with other constitutional provisions governing judicial appointments:

• Article 124: Establishes the Supreme Court and prescribes the appointment procedure for its judges.
• Article 217: Relates to the appointment and conditions of service of High Court judges.
• Article 222: Provides for the transfer of judges between High Courts.
• Article 50: Enshrines the separation of the judiciary from the executive as a Directive Principle of State Policy.
• Article 124A & 124C: Define the composition and regulation of the NJAC respectively.

Together, these articles constitute the constitutional architecture of judicial appointments in India.

Landmark Case Laws

• S.P. Gupta v. Union of India (1981): Recognised the executive’s primacy in appointments before the Collegium System was established.
• Supreme Court Advocates-on-Record Association v. Union of India (1993): Established judicial primacy in the appointment process, creating the Collegium System.
• Special Reference No. 1 of 1998: Clarified the composition and functioning of the Collegium.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): Declared the NJAC unconstitutional, reaffirming judicial independence as part of the basic structure.

These cases together trace the constitutional evolution from executive control to judicial dominance and the attempted rebalancing under Article 124B.

Implications of the NJAC Judgment

The striking down of Article 124B and the NJAC Act had several implications:

• Restoration of the Collegium System: Judicial appointments reverted to the pre-amendment system led by the judiciary.
• Reaffirmation of Judicial Independence: The Supreme Court strengthened its own autonomy in the appointment process.
• Renewed Debate on Reform: The judgment reignited discussions about improving the Collegium System’s transparency and accountability.
• Legislative-Executive-Judicial Tension: The case underscored the ongoing struggle between different organs of government over control of judicial appointments.

Current Status

Although Article 124B remains in the constitutional text, it is non-functional following the Supreme Court’s 2015 ruling. The Collegium System continues to govern the appointment and transfer of judges in the Supreme Court and High Courts.
At present, debates persist regarding the need for a reformed mechanism that combines the Collegium’s independence with the NJAC’s goals of transparency and public accountability.

Significance and Legacy of Article 124B

While Article 124B is inoperative, its constitutional and political significance endures:

• It represents a landmark attempt to reform judicial appointments and balance the powers of the judiciary and executive.
• It brought the issue of judicial accountability and transparency to the forefront of constitutional debate.
• It highlighted the importance of basic structure jurisprudence as a check on constitutional amendments.
• It continues to serve as a reference point for ongoing discussions about institutional reform in the judiciary.

Conclusion

Article 124B of the Indian Constitution was conceived to define the functions of the National Judicial Appointments Commission, marking a major attempt to reform India’s judicial appointment process. Although the Supreme Court’s 2015 judgment rendered it unconstitutional and inoperative, the debates surrounding it have shaped contemporary constitutional discourse.