99th Constitutional Amendment Act 2014

Also called: NJAC amendment · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Beyond NCERT

Meaning

The Constitution (99th Amendment) Act, 2014 added Articles 124A–124C to the Constitution. These created the National Judicial Appointments Commission (NJAC), a six-member body that would recommend the appointment and transfer of Supreme Court and High Court judges in place of the collegium (a group of the Chief Justice of India and the senior-most Supreme Court judges). In SCAORA v. Union of India (16 October 2015), the Supreme Court struck down both this Amendment and the NJAC Act, 2014 because they violated the basic structure [3][4].

It matters because it was the first time the Supreme Court used the basic structure test to strike down a constitutional amendment on judicial appointments. The case also brought back the collegium, and the debate over that system continues today.

Explanation

What the Amendment added

• Assent: the 99th Amendment received the President's assent on 31 December 2014 [1].
• It inserted three new Articles:
• Art. 124A: created the NJAC.
• Art. 124B: gave the NJAC the job of recommending appointments and transfers of judges.

• Art. 124C: let Parliament make a law on how the NJAC would work.

• A partner law: Parliament used Art. 124C to pass the National Judicial Appointments Commission Act, 2014 (No. 40 of 2014). It also received assent on 31 December 2014 [2].

Who sat on the NJAC (6 members)

Group	Members
Judiciary (3)	CJI (Chairperson); the next two senior-most SC judges
Executive (1)	Union Law Minister
Eminent persons (2)	Chosen by a committee of the PM, the CJI and the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party). One had to be from the SC, ST, OBC or minority communities, or be a woman.

• The Vice-President had no role in the NJAC.

How the NJAC Act worked

• Veto by any two members:
• The Commission "shall not recommend a person for appointment if any two members of the Commission do not agree" [2].
• This rule applied to SC judges (Section 5(2)) and to HC judges (Section 6(6)) [2].

• As a result, the two eminent persons, or the Law Minister and one eminent person, could block a candidate whom all three judges supported.

• CJI: the senior-most SC judge was to be recommended as CJI "if he is considered fit" (Section 5(1)) [2].

• HC judges: the Commission had to get the written views of the Governor and the Chief Minister of the state (Section 6(7)) [2].
• Role of the President: the President could send a name back once for reconsideration. If the NJAC sent the same name again, the President had to appoint that person (Section 7) [2].
• Time limit: the Centre had to refer a vacancy to the NJAC six months before a judge's term ended (Section 4(2)) [2].

How it was passed, step by step

1. Parliament: passed it in August 2014 with the special majority under Art. 368. This means a majority of the total membership of each House, plus two-thirds of the members present and voting [3].
2. States: the Amendment changed the judiciary's powers. So under Art. 368(2) it also needed ratification (formal approval) by half the state legislatures. The states gave it.
3. Assent: the President gave assent on 31 December 2014 [1].
4. Start: it came into force in April 2015.

In the Constitution and practice

• Where it sits: Arts. 124A–124C (99th Amendment, 2014) and the NJAC Act, 2014 (Act No. 40 of 2014) [1][2]. These Articles no longer have effect, because the Court struck them down.
• What it tried to replace: the collegium system. The judges built this system themselves through the Second Judges case (1993) and the Third Judges case (1998). The Constitution's text does not mention it.
• Earlier ideas for a judicial commission [3]:
• Law Commission (1987): a mostly judicial body with no eminent persons.
• NCRWC (2002): CJI as chair and one eminent person.
• National Advisory Council (2005): Vice-President as chair.

• 2nd ARC (2007): a body with more members from the executive.

• SCAORA v. Union of India (16 October 2015):

• Bench: five judges. Vote: 4:1, with Justice J. Chelameswar dissenting (disagreeing with the majority).
• Ruling: both the 99th Amendment and the NJAC Act were struck down [3][4].
• The majority's reasoning, step by step:
  • Judicial independence (judges must be free from government pressure) is part of the basic structure.
  • Independence needs the judiciary to have primacy, meaning the final say, in appointing judges.
  • The NJAC did not protect that primacy. The three judges could be outvoted, and two non-judges could veto a name [4].
  • Giving the executive this role therefore harms judicial independence and the separation of powers (each organ of the state sticks to its own work) [3][4].

• Dissent: Justice Chelameswar held that a role for the executive does not by itself destroy independence. He also said the collegium was not transparent.

• What followed:

• The collegium system was revived.

• In hearings from 3 November 2015, the Court worked on improving the collegium [3]. The government was to draft a new Memorandum of Procedure (MoP), the written rulebook for appointments.

• Lasting effect: the case added "judicial primacy in appointments" to the list of basic features. Critics point to this as an example of the doctrine growing case by case.

Don't confuse with

• Collegium vs NJAC: the collegium was made by judges through case law and is not in the constitutional text. The NJAC was written into the Constitution (Art. 124A) and included the Law Minister and two eminent persons.
• NJAC (2014) vs NAC model (2005): the NJAC was chaired by the CJI. The National Advisory Council's 2005 proposal made the Vice-President the chair.
• 99th Amendment vs NJAC Act: the 99th Amendment created the body (Arts. 124A–124C). The NJAC Act (No. 40 of 2014) set out its working rules, such as the two-member veto. The Court struck down both.
• 97th Amendment (2011) vs 99th Amendment (2014): in Rajendra N. Shah (2021), Part IXB of the 97th was struck down for states' co-operatives because half the states had not ratified it under Art. 368(2). The 99th was ratified by the states and was struck down on basic structure grounds.

Prelims Hooks

• Arts. 124A–124C were inserted by the 99th Amendment, 2014. Assent was given on 31 December 2014 [1].
• The NJAC Act is Act No. 40 of 2014 [2]. Under its Sections 5(2) and 6(6), any two members could block a name [2].
• NJAC chair: the CJI. The two eminent persons were chosen by the PM, the CJI and the Leader of the Opposition in the Lok Sabha. Trap: the Vice-President had no role.
• It needed ratification by half the state legislatures (Art. 368(2)) and came into force in April 2015.
• SCAORA v. Union of India (16 October 2015): 4:1, Justice J. Chelameswar dissented. Judicial primacy in appointments is part of judicial independence, and so of the basic structure.
• For HC appointments, the NJAC had to get the written views of the Governor and the Chief Minister (Section 6(7)) [2].

Mains Points

• Judicial independence vs accountability:
• The NJAC verdict kept primacy with the judges. But the collegium has no basis in the Constitution's text, gives no published reasons and has no outside check.
• Chelameswar's dissent raised this lack of transparency.

• Reform choices include:

  • a revised NJAC that keeps a judicial majority but removes the two-member veto;
  • a final Memorandum of Procedure;
  • a permanent secretariat and published criteria;
  • fixed time limits for the government to clear names.

• Legitimacy of the basic structure test in the NJAC case:

• For: the doctrine guards against majority abuse, as the Emergency (1975–77) showed.
• Against:
  • it is counter-majoritarian: unelected judges cancelled a change that Parliament passed by special majority and the states ratified;
  • judges decided a case about their own appointments;
  • the list of basic features keeps growing.

• A balanced answer: keep the doctrine, but ask for a clear, limited list of basic features and careful use by judges.

• Separation of powers in appointments:

• The majority saw executive involvement as a threat to separation of powers [3][4].
• The dissent saw it as a normal check and balance.
• A middle path would give the executive a role in consultation but not a veto.

Related concepts

• NJAC case

Read more

• The basic structure after 2000: the NJAC case and the critics