NJAC case

Also called: Supreme Court Advocates-on-Record Association v. Union of India (2015), Fourth Judges case · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Beyond NCERT

Meaning

The NJAC case (Supreme Court Advocates-on-Record Association v. Union of India, 16 October 2015), also called the Fourth Judges case, is the Supreme Court judgment that struck down, by a 4:1 vote, the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 [3][4]. The Court said judicial independence is part of the basic structure, and that independence needs the judiciary to have primacy (the final say) in choosing judges. The ruling brought back the collegium. It matters because it was the first time the Court struck down a constitutional amendment on judicial appointments using the basic structure test.

Explanation

What Parliament tried to do: the 99th Amendment and the NJAC Act

• Two laws worked as a pair:
• Constitution (99th Amendment) Act, 2014. It received assent on 31 December 2014 [1]. It inserted Arts. 124A–124C.
  • Art. 124A created the National Judicial Appointments Commission (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.

• NJAC Act, 2014 (No. 40 of 2014). It also received assent on 31 December 2014 [2].

• Six members:

• Judiciary (3): the CJI (Chairperson) and the next two senior-most Supreme Court judges.
• Executive (1): the 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 come from the SC, ST, OBC or minority communities, or be a woman.

• The two-member veto: the Commission "shall not recommend a person for appointment if any two members of the Commission do not agree". This covered SC judges (Section 5(2)) and HC judges (Section 6(6)) [2].

• So the two eminent persons together could block a name.

• The Law Minister and one eminent person together could also block a name, even if all three judges supported it.

• Other rules in the Act [2]:

• The senior-most SC judge was to be recommended as CJI "if he is considered fit" (Section 5(1)).
• For HC judges, the NJAC had to get the written views of the Governor and the Chief Minister of the state (Section 6(7)).
• The President could send a name back once. If the NJAC sent it again, the President had to appoint (Section 7).
• The Centre had to refer a vacancy six months before a judge's term ended (Section 4(2)).

How the amendment passed

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

What the Court decided, and why

• Bench and vote: five judges, 4:1. Justice J. Chelameswar dissented (disagreed with the majority).
• The majority's chain of reasoning:
• Judicial independence (judges being free from government pressure) is part of the basic structure.
• Independence needs primacy. The judiciary must have the final say in choosing judges.
• The NJAC took that primacy away. Its three judges could be outvoted, and two non-judges could veto a name [4].

• So executive involvement harmed judicial independence and the separation of powers (each branch of government keeping to its own work) [3][4].

• Justice Chelameswar's dissent:

• A role for the executive does not by itself destroy independence.
• The collegium was not transparent.

What followed

• The collegium came back. It is a group of the CJI and the senior-most SC judges that chooses and transfers judges. Judges built it through the Second Judges case (1993) and the Third Judges case (1998). The Constitution does not mention it.
• In later hearings from 3 November 2015 [3], the Court worked on improving the collegium.
• The government was to draft a new Memorandum of Procedure (MoP), the written rulebook for appointments.

In the Constitution and practice

• Where it sits:
• The 99th Amendment (2014) added Arts. 124A–124C [1]. The judgment struck these down.
• The amendment was made under Art. 368, and it was ratified by the states under Art. 368(2).

• The test the Court used is the basic structure doctrine from Kesavananda Bharati (1973). Parliament can amend any part of the Constitution, but it cannot destroy its core features, such as democracy, federalism, judicial review and judicial independence.

• Background: earlier ideas for a judicial commission [3]:

• Law Commission (1987): a mostly judicial body with no eminent persons.
• NCRWC (2002): the CJI as chair and one eminent person.
• National Advisory Council (2005): the Vice-President as chair.

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

• What changed in practice:

• The doctrine grew. It showed that the Court adds basic features case by case. Here it added judicial primacy in appointments.

• The criticism keeps coming back. Critics say judges decided a case about their own appointments, and the collegium gives little transparency. In 2023 the then Vice-President publicly questioned the doctrine and the NJAC verdict (verify).

• Compare with Jaishri Laxmanrao Patil (2021): that ruling was answered by an ordinary amendment, the 105th Amendment (2021) [5]. The NJAC ruling cannot be answered that way, because it rests on the basic structure.

Don't confuse with

• Second Judges case (1993) and Third Judges case (1998): these cases built the collegium. The NJAC case (the Fourth Judges case, 2015) revived it, after striking down the NJAC that was meant to replace it.
• NJAC under the 99th Amendment vs the NAC's 2005 model: the NJAC was chaired by the CJI. The Vice-President chaired only the National Advisory Council's 2005 proposal [3]. The Vice-President had no role in the NJAC.
• Collegium vs NJAC: the collegium is judges only and has no textual basis in the Constitution. The NJAC was a 6-member mixed body written into the Constitution by Arts. 124A–124C.
• Rajendra N. Shah (2021): this case also struck down part of an amendment, Part IXB of the 97th Amendment (2011), but because half the states had not ratified it under Art. 368(2). That is a procedural defect. The NJAC amendment was ratified, and it fell on the basic structure test.

Prelims Hooks

• 99th Amendment, 2014 → inserted Arts. 124A–124C. The NJAC Act is Act No. 40 of 2014. Both received assent on 31 December 2014 [1][2].
• NJAC chair: the CJI. The PM, the CJI and the Leader of the Opposition in the Lok Sabha chose the two eminent persons. Trap: the Vice-President had no role.
• Veto: any two members could block a name (Sections 5(2) and 6(6), NJAC Act) [2].
• SCAORA (16 October 2015): 5-judge bench, 4:1, and Justice J. Chelameswar dissented. The Court struck down both the 99th Amendment and the NJAC Act [3][4].
• Principle of the case: judicial primacy in appointments is part of judicial independence, and so of the basic structure. Result: the collegium was revived, and work began on a new Memorandum of Procedure.
• Ratification trap: the 99th Amendment did get ratification from half the states under Art. 368(2). It was struck down on substance (basic structure), not on procedure.

Mains Points

• Independence vs accountability:
• The judgment protected judges from executive pressure.
• But the collegium it revived has no basis in the Constitution, no published reasons and no outside check, as Justice Chelameswar's dissent noted.

• Reform ideas: 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 doctrine:

• For: it guards against misuse by a large majority, as the Emergency (1975–77) and the 39th and 42nd Amendments showed.
• Against: it is counter-majoritarian (unelected judges cancel a change that elected representatives made by special majority and the states ratified). It is also undefined and keeps growing, and here judges decided a case about their own appointments.

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

• Dialogue between Parliament and the Court: after Jaishri Laxmanrao Patil, Parliament answered with the 105th Amendment (2021) [5]. After the NJAC case, it cannot reply in the same way, because the ruling rests on the basic structure. So a reform has to work within judicial primacy, for example through a better MoP or a commission with a judicial majority.

Related concepts

• 99th Constitutional Amendment Act 2014

Read more

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