Previous Year Question
Consider the following statements:
The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of judiciary.
Which of the statement(s) given above is/are correct?
Only 1
Only 2
Both 1 and 2
Neither 1 nor 2
Correct Answer: B
Detailed Solution
Statement 1 is incorrect
The attempt to place the election of the Prime Minister beyond judicial review was made by the Thirty-ninth Constitutional Amendment Act, 1975, not the Forty-fourth Amendment.
The Thirty-ninth Amendment inserted Article 329A. Clause (4) sought to place disputes relating to the election of the Prime Minister and Speaker of the Lok Sabha outside the ordinary judicial process.
In Indira Nehru Gandhi v. Raj Narain (1975), the Supreme Court declared Article 329A(4) unconstitutional. The Court held that it violated principles forming part of the Basic Structure, including:
Free and fair elections;
Rule of law;
Separation of powers;
Equality; and
Judicial review.
The Forty-fourth Constitutional Amendment Act, 1978 subsequently omitted Article 329A from the Constitution. Thus, the Forty-fourth Amendment did not place the Prime Minister’s election beyond judicial review; it removed the earlier provision connected with such exclusion.
Statement 2 is correct
The Ninety-ninth Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014 sought to establish the National Judicial Appointments Commission—NJAC for appointments to the higher judiciary.
The Ninety-ninth Amendment inserted Articles 124A, 124B and 124C.
The proposed NJAC consisted of:
The Chief Justice of India as Chairperson;
Two senior-most judges of the Supreme Court;
The Union Minister of Law and Justice; and
Two eminent persons.
In Supreme Court Advocates-on-Record Association v. Union of India (2015), a five-judge Constitution Bench of the Supreme Court, by a 4:1 majority:
Struck down the Ninety-ninth Constitutional Amendment;
Declared the NJAC Act, 2014 unconstitutional; and
Restored the collegium system of judicial appointments.
The principal reasoning of the majority was that independence of the judiciary forms part of the Basic Structure and that the composition of the NJAC did not sufficiently preserve the institutional independence of the judiciary in judicial appointments.
Constitutional amendments and judicial review
Article 368 empowers Parliament to amend the Constitution. However, under the Basic Structure doctrine, a constitutional amendment cannot destroy features such as:
Independence of the judiciary;
Judicial review;
Rule of law; or
Separation of powers.