The 99th Constitutional Amendment Act which established the National Judicial Appointments Commission was held to be unconstitutional but remains undone.

The 99th Constitutional Amendment Act 2014, which established the National Judicial Appointments Commission, was held to be unconstitutional by the Supreme Court of India on the 16th October 2015. The Collegium system, will thus be continued to be followed for the appointment of Supreme Court and High Court Judges.

The present case, is different from any previous case, concerning the merits of the two decade old Collegium system. While previous cases, debated on the meaning of the word “Consultation” in Article 124 and 217 of the Constitution of India, the present case decided on the constitutionality of an Act, which sought to change the basic structure of the Constitution.

constitution of india The Unconstitutionality Of The 99th Constitutional Amendment Act

The basic structure has been interpreted to include; the separation of powers between the legislature, the executive and the judiciary. The courts have further expanded on this interpretation to include, the independence of the judiciary. This means, that the Parliament under Article 368 must preserve this distinction of power, in any, and all Act enacted by it. If any Act violates this rule, the court will hold the Act to be unconstitutional.

The basic structure must be preserved, and no act of the Constitution can amend, nor nullify this basic structure. The Court has interpreted that the appointment of Judges by the Collegium system, preserves the independence of the judiciary, and is a part of the basic structure. The Act in question appoints a commission consisting of members from the judiciary, executive and the public. Since it changes the structure of appointment of judges, is has thus violated the basic structure of the Constitution, thus, it is unconstitutional.

law and order The Unconstitutionality Of The 99th Constitutional Amendment Act

The power of appointment of judges is inherently connected with the independence of the judiciary. The framers of the constitution thus excluded this power to appoint, from the executive. The independence of the judicial appointments, would lead to independence in decision making, and functional independence of judicial institution. The impartiality of the judges, is of paramount importance, which must be free from any kind of executive pressure, personal pressure or institutional pressure. This can only be achieved if the judicial institution is not controlled by the executive. If the executive controls the appointment of judges, it has effectively invaded the judicial institution, as it is the executive who effectively controls, that appointment, and not the judiciary.

The Supreme Court has upheld the Primacy of Judicial appointments in many landmark cases in the past. The Second Judges and Third Judges Cases, interpreted the word ‘consultation’ under Article 124 and 217, to mandatorily require the consent of the Chief Justice of India, Supreme Court Judges and Chief Justice of High Court, for the appointment of Judges. It also stated that the Chief Justice decision would be final in case of any conflict of opinion, and any departure from his decision, would require strong reasons from the executive. Thus the courts have preserved the independence of the judiciary by upholding the power of appointment of Supreme Court and High Court Judges.

supreme court The Unconstitutionality Of The 99th Constitutional Amendment Act

The National Judicial Appointments Commission, consists of a group of persons who appoint judges. This group includes two eminent person, nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition. This may lead to political parties choosing a person only based on political considerations, which will result in destroying the integrity of the judiciary. If the eminent person, are political neutrals but do not understand the judicial system, they will fail to make an effective choice in the appointment. Moreover, the nomination of the eminent person may be questioned, thus leading to the delayed functioning of the Commission.

99th amendment act The Unconstitutionality Of The 99th Constitutional Amendment Act

The 99th Amendment Act, sought to make the process of appointment of judges, more accountable and transparent, by also involving the executive. There has been numerous complaints of deserving candidates not being appointed judges, while unworthy candidates are. Thus the Act was introduced to abrogate the Collegium system, and received an over whelming majority in both houses of Parliament.

It should be kept in mind, that majority of cases in the courts are fought by the legislative, and an entry of legislative power in the appointment of judges could result in injustice. Thus it has always been intended that the judiciary be free from legislative control, and appoint judges by itself, thus being unconnected with the other two organs of the government. The Court decision is right, and it has preserved the basic structure of the Constitution.

By Vaibhav R.M

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