Constitution of India
Article 124B: Functions of Commission
Part V — The Union, Chapter IV — The Union Judiciary
Article 124B — Functions of Commission (Single undivided article with sub-clauses (a), (b), (c))
WHAT IT SAYS: 1. It shall be the DUTY of the NJAC to: (a) Recommend persons for appointment as CJI, SC Judges, HC Chief Justices and HC Judges. (b) Recommend transfer of HC Chief Justices and Judges from one HC to another. (c) Ensure that the person recommended is of ABILITY and INTEGRITY. WHAT IT MEANS: 1. The NJAC was given THREE core functions: recommending judicial appointments, recommending judicial transfers, and vetting candidates for ability and integrity. 2. It transferred appointment/transfer recommendations from the Collegium to a 6-member mixed body (3 judges + Law Minister + 2 eminent persons). 3. The word 'duty' made these functions MANDATORY, not discretionary. 4. Currently INOPERATIVE — the Collegium system continues to govern all appointments. KEY DOCTRINE: 1. Basic Structure Doctrine — SC held that judicial primacy in appointments is part of the basic structure; Article 124B's framework (being part of 99th Amendment) violated it. 2. Doctrine of Judicial Independence — Any mechanism diluting judicial primacy in appointments unconstitutionally undermines independence of judiciary.
Constitutional Inspiration
SOURCE(S): 1. [United Kingdom — Constitutional Reform Act, 2005] Original provision: UK's Judicial Appointments Commission (JAC) is a 15-member body (lay chair, judicial members, barristers, solicitors, lay members) that selects judges on merit for courts in England and Wales. What India borrowed: The concept of a mixed judicial appointments commission with both judicial and non-judicial members to replace an older, less transparent system. 2. [South Africa — Constitution of 1996, Section 174 read with Section 178] Original provision: South Africa's Judicial Service Commission (JSC) advises the President on judicial appointments; it includes CJ, judges, advocates, attorneys, law professor, MPs, and presidential appointees. What India borrowed: The idea of including eminent civil society members and ensuring diversity (SC/ST/OBC/minority/women representation) in the commission. INDIA'S SPECIFIC ADAPTATIONS: 1. Veto power for ANY two NJAC members — Unlike UK/SA models, India's NJAC allowed any 2 of 6 members to block a recommendation; this was a key reason the SC struck it down. 2. Inclusion of Union Law Minister as ex-officio member — India uniquely made the executive a direct participant; UK JAC excludes government ministers from selection. 3. Mandatory SC/ST/OBC/minority/women representation — India required at least one of the two eminent persons to belong to underrepresented groups; this was an original Indian social justice adaptation. 4. Three-year non-renewable tenure for eminent persons — India fixed strict term limits to prevent entrenchment. IF ORIGINAL INDIAN CONTRIBUTION: Article 124B was Parliament's response to decades of criticism of the judge-made Collegium system (which finds no mention in the original Constitution). India is the only major democracy where judges exclusively appoint judges. The NJAC was designed to rebalance power between judiciary, executive, and civil society.
Constituent Assembly Debate
NOTE: Article 124B was NOT part of the original Constitution. It was INSERTED by the Constitution (99th Amendment) Act, 2014. Therefore, there are NO Constituent Assembly Debates (1946-1950) directly on Article 124B. HOWEVER, the parent provision — Article 124 (originally Draft Article 103) — was debated: DEBATED ON: 24 May 1949 (CAD Volume VIII) KEY SPEAKERS: 1. Dr. B.R. Ambedkar — Defended the 'consultation' model: the President appoints judges after consulting the CJI, but CJI's opinion is not binding; rejected both pure executive control and pure judicial control of appointments. 2. Prof. K.T. Shah — Proposed Article 102-A mandating complete separation of judiciary from BOTH executive AND legislature; this was decisively rejected by the Assembly. 3. Shri K.M. Munshi — Opposed strict separation of powers, stating India adopted the British model with judicial independence equivalent to the Privy Council and US Supreme Court, but rejected watertight compartments. MAJOR DISAGREEMENTS: 1. Consultation vs. Concurrence — Whether the CJI's opinion should be binding (concurrence) or merely advisory (consultation). The Assembly chose 'consultation', not 'concurrence'. 2. Parliamentary confirmation — One member proposed that CJI appointment require 2/3 majority of a joint Parliament session; this was rejected as it would make the CJI subject to the majority party leader. 3. Sole judicial control — The Assembly explicitly rejected vesting appointment power entirely in the judiciary. FINAL OUTCOME: The Assembly adopted a model of Presidential appointment with mandatory consultation of CJI (not concurrence), rejecting strict separation of powers and judicial monopoly over appointments. AMBEDKAR'S KEY POSITION: Ambedkar opposed giving sole appointment power to either Parliament (for political reasons) or the Executive (as the executive is party to too many disputes before courts). He favored a balanced consultative process.
Landmark Judgments
LANDMARK JUDGMENTS: 1. S.P. Gupta v. Union of India (1981) [First Judges Case] — Held that 'consultation' does not mean 'concurrence'; the President (executive) has primacy in judicial appointments over the CJI. 2. Supreme Court Advocates-on-Record Association v. Union of India (1993) [Second Judges Case] — Overruled First Judges Case (7:2); held 'consultation' means 'concurrence'; established the Collegium System giving judicial primacy in appointments. 3. Special Reference No. 1 of 1998 [Third Judges Case] — Expanded the Collegium from CJI + 2 judges to CJI + 4 senior-most SC judges for SC appointments; CJI + 2 for HC appointments. 4. Supreme Court Advocates-on-Record Association v. Union of India (2015) [Fourth Judges Case] — By 4:1 majority, struck down the 99th Amendment (Articles 124A, 124B, 124C) and NJAC Act as unconstitutional for violating the basic structure (judicial independence); restored the Collegium System. NOTABLE DISSENTS: 1. Justice Jasti Chelameswar in SCAORA v. Union of India (2015) — Sole dissenter; upheld the NJAC as constitutional; criticized the Collegium as opaque and unaccountable, stating the records were 'absolutely beyond the reach of any person' and that 'transparency is a vital factor in constitutional governance.' SCHOLARS & JURISTS: 1. Fali S. Nariman (Senior Advocate) — Argued for petitioners challenging NJAC; suggested the NJAC could have been 'read down' to retain constitutionality instead of being struck down entirely. 2. Arghya Sengupta (Vidhi Centre) — Argued that creating a Judicial Appointments Commission is not a step backward but a concrete opportunity for a participatory and transparent appointment method in line with contemporary constitutional design. 3. Vice President Jagdeep Dhankhar (2022) — Criticized the NJAC judgment as an unprecedented encroachment on parliamentary powers by the judiciary, violating the theory of separation of powers.