NJAC  - 121st AMENDMENT OF THE CONSTITUTION

THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014

A BILL further to amend the Constitution of India.

Amendment of article 124.

Bill No. 97 of 2014

AS INTRODUCED IN LOK SABHA ON 11.8.2014

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—

1. (1) This Act may be called the Constitution (One Hundred and twenty-first Amendment) Act, 2014.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In article 124 of the Constitution, in clause (2),––

(a) for the words “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted; 

Short title and commencement.

(b) the first proviso shall be omitted;

(c) in the second proviso, for the words “Provided further that”, the words “Provided that” shall be substituted.

Amendment of article 222. Amendment of article 224. Amendment of article 224A.

Insertion of new articles 124A, 124B and 124C

3. After article 124 of the Constitution, the following articles shall be inserted, namely:—

National Judicial Appointments Commission

“124A. (1) There shall be a Commission to be known as the National Judicial

Appointments Commission consisting of the following, namely:––

(a) the Chief Justice of India, Chairperson, ex officio;

(b) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;

(c) the Union Minister in charge of Law and Justice––Member, ex officio;

(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members:

Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:

Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

Functions of Commission.

124B. It shall be the duty of the National Judicial Appointments Commission to—

(a) recommend persons for appointment as Chief Justice of India, Judges

of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;

(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and

(c) ensure that the person recommended is of ability and integrity.

Power of Parliament to make law.

124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.”.

Amendment of article 127.

4. In article 127 of the Constitution, in clause (1), for the words “the Chief Justice of India may, with the previous consent of the President”, the words “the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the President” shall be substituted.

Amendment of article 128.

5. In article 128 of the Constitution, for the words “the Chief Justice of India”, the words “the National Judicial Appointments Commission” shall be substituted.

Amendment of article 217.

6. In article 217 of the Constitution, in clause (1), for the portion beginning with the words “after consultation”, and ending with the words “the High Court”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted. 

Amendment of article 222.

7. In article 222 of the Constitution, in clause (1), for the words “after consultation with the Chief Justice of India”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted.

Amendment of article 224.

8. In article 224 of the Constitution,––

(a) in clause (1), for the words “the President may appoint”, the words “the President may, in consultation with the National Judicial Appointments Commission, appoint” shall be substituted;

(b) in clause (2), for the words “the President may appoint”, the words “the President may, in consultation with the National Judicial Appointments Commission, appoint” shall be substituted.

Amendment of article 224A.

9. In article 224A of the Constitution, for the words ‘‘the Chief Justice of a High Court for any State may at any time, with the previous consent of the President’’, the words ‘‘the National Judicial Appointments Commission on a reference made to it by the Chief Justice of a

High Court for any State, may with the previous consent of the President’’ shall be substituted.

Amendment of article 231.

10. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.

STATEMENT OF OBJECTS AND REASONS

The Judges of the Supreme Court are appointed under clause (2) of article 124 and the Judges of the High Courts are appointed under clause (1) of article 217 of the Constitution, by the President. The Ad-hoc Judges and retired Judges for the Supreme Court are appointed under clause (1) of article 127 and article 128 of the Constitution respectively. The appointment of Additional Judges and Acting Judges for the High Court is made under article 224 and the appointment of retired Judges for sittings of the High Courts is made under article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.

2. The Supreme Court in the matter of the Supreme Court Advocates-on-Record Association Vs. Union of India in the year 1993, and in its Advisory Opinion in the year 1998 in the Third Judges case, had interpreted clause (2) of article 124 and clause (1) of article 217 of the Constitution with respect to the meaning of “consultation” as “concurrence”. Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and is being followed for appointment.

3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointments Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.

4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 is an enabling constitutional amendment for amending relevant provisions of the Constitution and for setting up a National Judicial Appointments Commission. The proposed Bill seeks to insert new articles 124A, 124B and 124C after article 124 of the Constitution. The said Bill also provides for the composition and the functions of the proposed National Judicial Appointments Commission. Further, it provides that Parliament may, by law, regulate the procedure for appointment of Judges and empower the National Judicial Appointments Commission to lay down procedure by regulation for the discharge of its functions, manner of selection of persons for appointment and such other matters as may be considered necessary.

5. The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater  transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts.

6. The Bill seeks to achieve the above objectives.

NEW DELHI;                                              RAVI SHANKAR PRASAD.

The 8th August, 2014.

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PRESIDENT'S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA

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[Copy of letter No. K-11016/1/2009-US.II, dated 8 August, 2014 from Shri Ravi Shankar Prasad, Minister of Law and Justice to the Secretary-General, Lok Sabha]

The President, having been informed of the subject matter of the proposed Constitution (One Hundred and Twenty-first Amendment) Bill, 2014, recommends to the House the consideration of the Bill under article 117(3) of the Constitution of India. 

                                       ANNEXURE

EXTRACTS FROM THE CONSTITUTION OF INDIA

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CHAPTER IV. —THE UNION JUDICIARY

Establishment and constitution of Supreme Court

124. (1)* * * * *

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: 

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided futher that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4).

* * * * *

Appointment of ad hoc Judges

127. (1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

* * * * *

Attendance of retired Judges at sittings of the Supreme Court

128. Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

* * * * *

Appointment and conditions of the office of a Judge of a High Court

217. (1) Every Judge of a high Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of  appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

* * * * *

Transfer of a Judge from one High Court to another

222. ( 1 ) The President may, after consultation with the Chief Justice of India, transfer a Judge form one High Court to any other High Court.

* * * * *

Appointment of additional and acting Judges

224. (1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.

(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.

* * * * *

Appointment of retired Judges at sittings of High Courts.

224A. Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.

* * * * *

Establishment of a common High Court for two or more States.

231.(1)* * * * *

(2) In relation to any such High Court, —

(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;

* * * * *

LOK SABHA

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A BILL further to amend the Constitution of India.

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(Shri Ravi Shankar Prasad, Minister of Law and Justice)

GMGIPMRND—2181LS—11.08.2014.