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

Detail

Key terms

• Basic structure: Parliament can amend any part of the Constitution under Article 368. It cannot destroy the Constitution's core features, such as democracy, federalism, judicial review and judicial independence. The Supreme Court set out this limit in Kesavananda Bharati (1973).
• Collegium: a group of the CJI and the senior-most Supreme Court judges. It chooses and transfers judges of the Supreme Court and the High Courts. The judges built this system through the Second Judges case (1993) and the Third Judges case (1998). The Constitution does not mention it.
• Judicial independence: judges must be free from pressure by the government. The Court treats judicial independence as part of the basic structure.
• Separation of powers: the legislature, the executive and the judiciary each keep to their own work and do not take over each other's.

The 99th Amendment and the NJAC Act, 2014

• Two laws worked together:
• Constitution (99th Amendment) Act, 2014. It received assent on 31 December 2014 [2]. 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.
  • Art. 124C let Parliament make a law on how the NJAC would work.

• National Judicial Appointments Commission Act, 2014 (No. 40 of 2014). It also received assent on 31 December 2014 [3].

• Members of the NJAC (6 in all):

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 must come from the SC, ST, OBC or minority communities, or be a woman.

• Veto by any two members: the Commission "shall not recommend a person for appointment if any two members of the Commission do not agree". This rule covers SC judges (Section 5(2)) and HC judges (Section 6(6)) [3].

• So the two eminent persons together, or the Law Minister and one eminent person, could block a candidate the three judges supported.

• Other rules in the NJAC Act [3]:

• The senior-most SC judge was to be recommended as CJI "if he is considered fit" (Section 5(1)).
• For HC judges, the Commission 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 for reconsideration. If the NJAC repeated it, the President had to appoint (Section 7).

• The Centre had to refer a vacancy to the NJAC six months before a judge's term ended (Section 4(2)).

• How it passed: Parliament passed the Amendment in August 2014 [4]. It changed the judiciary's powers, so it needed ratification (formal approval) by half the state legislatures under Art. 368(2). The states ratified it, and it came into force in April 2015.

• Earlier ideas for a judicial commission [4]:
• 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.

The NJAC case: SCAORA v. Union of India (16 October 2015)

• Bench and vote: five judges, 4:1. Justice J. Chelameswar dissented (disagreed with the majority).
• Ruling: the Court struck down both the 99th Amendment and the NJAC Act [4][5].
• The reasoning, step by step:
• Judicial independence is part of the basic structure.
• Independence needs the judiciary to have primacy (the final say) in appointing judges.
• The NJAC did not secure that primacy. Its three judges could be outvoted, and two non-judges could veto a name [5].

• Involving the executive in appointments therefore harms judicial independence and the separation of powers [4][5].

• Justice Chelameswar's dissent: he held that a role for the executive does not by itself destroy independence. He said the collegium was not transparent.

• What followed:
• The collegium system was revived.

• In later hearings from 3 November 2015 [4], the Court worked on improving the collegium. The government was to draft a new Memorandum of Procedure (MoP), the written rulebook for appointments. (See the judiciary note.)

• Why it matters: it was the first time the Supreme Court struck down a constitutional amendment on judicial appointments using the basic structure test.

Other basic-structure tests after 2000

1. Janhit Abhiyan v. Union of India (7 November 2022, 3:2)

• The 103rd Amendment (2019) added Arts. 15(6) and 16(6). They allow up to 10% reservation for economically weaker sections (EWS): poor people outside the existing SC, ST and OBC quotas.
• The majority held that [6]:
• reservation based only on economic criteria does not breach the basic structure;

• leaving SC/ST/OBC groups out of the EWS quota does not breach the principles of non-discrimination and non-exclusion.

• The two dissenting judges said that excluding poor SC/ST/OBC people breaks the equality code (the guarantee of equal treatment), which is part of the basic structure.

2. Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra (5 May 2021) — the Maratha quota case

• 102nd Amendment (2018):
• It gave the National Commission for Backward Classes (NCBC) a place in the Constitution (Art. 338B).

• It added Art. 342A: the President notifies the list of SEBCs (socially and educationally backward classes).

• The Court's reading (3:2 on this point): after the 102nd Amendment, only the Centre could identify SEBCs. The states lost this power.

• Parliament's reply: the 105th Amendment (2021), passed as the 127th Amendment Bill [7]:
• It amended Art. 342A. The President's list now applies only to the Central Government.
• States and Union Territories can again prepare and keep their own SEBC lists [7].
• It made matching changes to Arts. 338B and 366 [7].
• States need not consult the NCBC when they prepare their own lists [7].

• The stated aim was to keep the federal structure [7].

• Lesson: a court's interpretation was answered by an amendment. This is a modern case of the old dialogue between Parliament and the Court (see §4).

3. Pointers to other notes

• Rajendra N. Shah (2021): the Court struck down Part IXB (co-operative societies) of the 97th Amendment (2011) for the states' co-operatives. Half the states had not ratified it under Art. 368(2) (§3).
• Mohit Minerals (2022): recommendations of the GST Council (Art. 279A) only persuade; they do not bind Parliament or the states. Both make GST laws together (cooperative federalism).
• Balram Singh (2024): the Court upheld the words "socialist" and "secular", added to the Preamble by the 42nd Amendment (1976) (see preamble-philosophy).
• In re Article 370 (2023): the Court upheld the ending of Jammu and Kashmir's special status (see special-provisions-scheduled-areas).

The debate on the basic structure

For the doctrine

• It protects against majority abuse.
• The Emergency (1975–77) and the 39th and 42nd Amendments showed that a large majority can try to rewrite the Constitution to protect those in power.

• The doctrine sets a limit that no majority can cross.

• Every institution now accepts it. Parliament, governments and courts have worked within it for five decades.

• Other countries have adopted it. Bangladesh's Supreme Court took it up in Anwar Hossain Chowdhury v. Bangladesh (1989).

Against the doctrine

• Counter-majoritarian: unelected judges cancel changes made by elected representatives, even when the special majority under Art. 368 has been met. "Counter-majoritarian" means it goes against what the elected majority decided.
• Undefined and growing:
• No full list of basic features exists.

• The Court adds features case by case, for example judicial primacy in appointments in the NJAC case (2015).

• Judges become the final authors: NCERT's cartoon in "Review of the Constitution" says, "Judges change the whole meaning of the Constitution."

• Self-interest in the NJAC case: critics said judges decided a case about their own appointments, and the collegium has little transparency (Chelameswar's dissent).
• Political criticism keeps returning: for example, in 2023 the then Vice-President publicly questioned the doctrine and the NJAC verdict (verify).

NCERT's view: Class 11 sees the doctrine as part of the "living document" idea. The Constitution changes through both amendments and court rulings, and the basic structure balances change with continuity. Exercise 10 asks whether the judiciary should decide whether amendments are valid.

Prelims Hooks

• Arts. 124A–124C were inserted by the 99th Amendment, 2014. The NJAC Act is Act No. 40 of 2014, with assent on 31 December 2014.
• NJAC chair: the CJI. The PM, the CJI and the Leader of the Opposition in the Lok Sabha chose the two eminent persons. The Vice-President had no role. (Trap: the NAC's 2005 model made the Vice-President chair.)
• NJAC veto: any two members could block a name (Sections 5(2) and 6(6), NJAC Act).
• SCAORA (16 October 2015): 4:1, Justice Chelameswar dissented. Judicial primacy in appointments is part of judicial independence, and so of the basic structure.
• 102nd Amendment (2018): Art. 338B (NCBC) and Art. 342A. 105th Amendment (2021): gave back to the states the power to make their own SEBC lists. It was introduced as the 127th Bill.
• Jaishri Laxmanrao Patil (5 May 2021): the Maratha quota case. It said only the Centre could identify SEBCs under the 102nd Amendment.
• Janhit Abhiyan (7 November 2022, 3:2): upheld the 103rd Amendment (2019): 10% EWS quota under Arts. 15(6) and 16(6).
• Anwar Hossain Chowdhury (1989): Bangladesh's Supreme Court adopted the basic structure doctrine.
• Balram Singh (2024): upheld "socialist" and "secular" in the Preamble (42nd Amendment).

Mains Points

• Judicial independence vs accountability: the NJAC case kept the judges' primacy. But the collegium has no basis in the Constitution, no published reasons and no outside check. Reform choices:
• 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.

• Dialogue, not a final word: the 105th Amendment, which reversed the effect of Jaishri Laxmanrao Patil, shows that Parliament can answer court rulings on ordinary matters. The basic structure only blocks changes that damage the Constitution's core. So the doctrine limits Parliament without stopping amendments.

• Legitimacy of the doctrine: it guards against majority abuse, as the Emergency showed, and other countries have adopted it, such as Bangladesh (1989). Against this, it is undefined and keeps growing, and judges decided a case about their own appointments (NJAC). A balanced answer would support the doctrine but ask for a clear, limited list of basic features and careful use by judges.
• Equality after Janhit Abhiyan: reservation based only on income was upheld. This shifts the meaning of equality from social backwardness to economic need. Critics say excluding poor SC/ST/OBC people goes against the purpose of reservation.