Ninety-ninth Amendment of the Constitution of India

The Ninety-ninth Amendment of the Constitution of India, officially titled The Constitution (Ninety-ninth Amendment) Act, 2014, sought to transform the process of appointing judges to the higher judiciary in India by establishing the National Judicial Appointments Commission (NJAC). The amendment replaced the long-standing “collegium system” of judicial appointments with a body intended to include representation from the judiciary, executive, and civil society.
However, on 16 October 2015, the Supreme Court of India, in a 4:1 majority judgement, declared the Ninety-ninth Amendment and the corresponding National Judicial Appointments Commission Act, 2014, as “unconstitutional and void”, thereby reinstating the earlier collegium system.

Background and Context

The method of appointing judges to the higher judiciary—namely, the Supreme Court and the High Courts—had long been a subject of debate in India. Initially, under Article 124(2) and Article 217(1) of the Constitution, judges were appointed by the President of India after “consultation” with the Chief Justice of India (CJI) and other judges as deemed necessary.
Over time, the Supreme Court interpreted the term “consultation” through a series of landmark cases that came to be known as the Judges Cases:

• First Judges Case (1981): Held that the President’s decision in judicial appointments was not bound by the CJI’s advice, giving primacy to the executive.
• Second Judges Case (1993): Overruled the first, holding that the CJI’s opinion, formed collectively with the two senior-most judges, would have primacy—creating the collegium system.
• Third Judges Case (1998): Expanded the collegium to include the CJI and four senior-most judges of the Supreme Court.

While the collegium system ensured judicial independence, it was often criticised for being opaque, unaccountable, and self-selecting. Successive governments and sections of civil society demanded reforms to make the process more transparent and inclusive. The Ninety-ninth Amendment emerged from this context as an attempt to replace the collegium with a more broad-based mechanism.

Legislative History and Enactment

The Constitution (Ninety-ninth Amendment) Bill, 2014, was introduced in Parliament to establish the National Judicial Appointments Commission (NJAC).

• Lok Sabha Passed: 13 August 2014
• Rajya Sabha Passed: 14 August 2014
• Ratified by: 16 State Legislatures, including Goa, Gujarat, Rajasthan, Telangana, and Tripura
• Presidential Assent: 13 April 2015 (by President Pranab Mukherjee)
• Came into Force: 13 April 2015

The amendment was accompanied by the National Judicial Appointments Commission Act, 2014, which laid down the detailed procedure for the Commission’s functioning.

Key Provisions of the Amendment

The Ninety-ninth Amendment amended several constitutional articles related to judicial appointments and inserted Articles 124A, 124B, and 124C, establishing the National Judicial Appointments Commission.
1. Composition of the NJAC (Article 124A): The NJAC was to consist of six members:

• The Chief Justice of India – Chairperson (ex officio)
• Two senior-most Judges of the Supreme Court – Members (ex officio)
• The Union Minister for Law and Justice – Member (ex officio)
• Two eminent persons to be nominated jointly by a committee comprising:
  • The Prime Minister,
  • The Chief Justice of India, and
  • The Leader of Opposition (or leader of the single largest opposition party in the Lok Sabha).

At least one of the eminent persons had to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities, or women.
2. Functions of the NJAC (Article 124B): The Commission was responsible for:

• Recommending persons for appointment as the Chief Justice of India, judges of the Supreme Court, and Chief Justices and judges of High Courts.
• Recommending the transfer of judges from one High Court to another.
• Ensuring that nominees were persons of “ability, integrity, and merit.”

3. Parliamentary Authority (Article 124C): Parliament was empowered to regulate the procedure for appointments and transfers and to authorise the NJAC to make regulations regarding the selection and functioning process.
4. Related Amendments: The Amendment modified multiple constitutional provisions, replacing the word “consultation” with “recommendation of the NJAC” in Articles 124, 217, 222, and related articles dealing with appointments, transfers, and temporary judges.

Purpose and Objectives

The NJAC sought to address major criticisms of the collegium system, particularly its:

• Lack of transparency and accountability, as appointments were made behind closed doors.
• Perceived nepotism and bias within the judiciary.
• Absence of executive and civil society representation in the selection process.

By creating the NJAC, the government aimed to:

• Bring transparency and diversity to judicial appointments.
• Balance judicial independence with executive accountability.
• Institutionalise a collaborative model involving multiple stakeholders.

The Supreme Court Challenge

Soon after its enactment, the Supreme Court Advocates-on-Record Association (SCAORA) and several other petitioners challenged the constitutionality of the Ninety-ninth Amendment and the NJAC Act. They argued that the amendment violated the “basic structure” of the Constitution, particularly the independence of the judiciary and the separation of powers between the judiciary and the executive.

The Supreme Court Judgement (2015)

On 16 October 2015, a five-judge Constitution Bench of the Supreme Court, headed by Justice J. S. Khehar, delivered its verdict in the Supreme Court Advocates-on-Record Association v. Union of India case.
By a 4:1 majority, the Court declared the Ninety-ninth Amendment and the NJAC Act, 2014, “unconstitutional and void”.
Key Findings of the Judgement:

1. Violation of Judicial Independence: The Court held that the inclusion of the Union Law Minister and eminent persons nominated through a political process compromised judicial independence, which is part of the basic structure of the Constitution.
2. Separation of Powers: The amendment blurred the constitutionally mandated separation between the judiciary and the executive, allowing potential governmental influence in judicial appointments.
3. Primacy of the Judiciary: The judgement reaffirmed the primacy of the judiciary in judicial appointments, as established in the Second and Third Judges Cases.
4. Reinstatement of the Collegium System: The Court reinstated the collegium system for appointments and transfers of judges, directing the continuation of the process as it existed before the amendment.
5. Scope for Reform: The Bench acknowledged the collegium system’s flaws and directed the government to propose reforms to improve its transparency and efficiency, while maintaining judicial primacy.

Justice J. Chelameswar, delivering the dissenting opinion, argued in favour of the NJAC, stating that the collegium system lacked transparency and accountability and had failed to serve the judiciary’s institutional interests effectively.

Significance and Implications

The striking down of the Ninety-ninth Amendment was a landmark reaffirmation of the basic structure doctrine, first articulated in the Kesavananda Bharati v. State of Kerala (1973) case.
Constitutional Significance:

• The verdict reaffirmed that judicial independence forms part of the basic structure of the Constitution and cannot be undermined even by a constitutional amendment.
• It reinforced the principle of checks and balances by preventing executive interference in judicial appointments.