Consider the following statements:The 44th Amendment to the Constitution of India introduced an Arti

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 statements given above is/are correct?

Accepted Answer

The Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted by Parliament would be vested with the power to resolve such election disputes.Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime Minister from embarrassment if the apex court delivered an unfavourable verdict.The National Judicial Appointments Commission (NJAC) was a body tasked with appointing judges to the higher judiciary in India. Article 124 of the Constitution was amended through the 99th Amendment to reflect the change in the system of appointments from the collegium system, in which a body of judges would be consulted by the President to appoint the judges, with the judiciary’s opinion being final. The composition of the NJAC includes the Chief Justice of India, the two senior most judges of the Supreme Court, the Law Minister and two “eminent persons”. A sub-committee was further constituted to appoint the “eminent persons”. The composition of the sub-committee includes the Prime Minister, the Chief Justice, and the Leader of the Opposition.The composition of the NJAC, therefore, presents a problem as it allows excessive executive interference in the appointment of judges. More specifically, the term “eminent persons” has not been defined with clarity, leaving a lot to the discretion of the executive. Therefore, it was natural for the judiciary to fear the abuse of such discretion by the executive, resulting in political appointments to the Supreme Court and the High Courts. Petitions were filed before the Supreme Court to strike down the 99th Amendment as being unconstitutional.The Court reasoned that the 99th Amendment was unconstitutional. In arriving at this conclusion, the Court evaluated the theory of separation of powers and held that the interference of the executive in the appointment of judges to the higher judiciary was a violation of this theory.