Consider the following statements: 1. The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review. 2. 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?
Contents11
- A1 only
- B2 only
- CBoth 1 and 2
- DNeither 1 nor 2
Show answer
Answer: (B) 2 only
The correct answer is (B) — 2 only.
Statement 1 is wrong — it was the 39th Amendment (not 44th) that placed the election of the PM beyond judicial review.
The 44th Amendment actually restored many democratic provisions.
Statement 2 is correct — the Supreme Court struck down the 99th Amendment (which created the National Judicial Appointments Commission or NJAC) because it allowed too much executive interference in appointing judges, violating the independence of the judiciary.
Tip:
- 39th Amendment = shielded PM's election from courts (during Emergency).
- 99th Amendment (NJAC) = struck down to protect judicial independence.
The 99th Amendment created the National Judicial Appointments Commission (NJAC) to change how judges are appointed, but the Supreme Court struck it down in 2015 for violating judicial independence.
UPSC is testing whether students can distinguish between the 39th Amendment (which shielded PM's election from judicial review during Emergency) and the 44th Amendment (which restored democratic provisions after Emergency).
39th Constitutional Amendment Act 1975
Indian Polity 39th Amendment election of the Prime Minister judicial review
39th Amendment Act 1975: Shielding PM's Election from Courts
39th Amendment (1975) placed election of PM beyond judicial review
Enacted during Emergency period to protect Indira Gandhi
44th Amendment (1978) later repealed Article 329A
Added Article 329A — courts cannot question PM/Speaker elections
The 39th Amendment Act of 1975 was passed during the Emergency to shield political leadership from judicial scrutiny. It specifically protected the election of the Prime Minister and Lok Sabha Speaker from being challenged in courts.
Key Provisions & Impact
Provision | What It Did | Real Impact |
|---|---|---|
Article 329A | Barred courts from questioning PM's election | Protected Indira Gandhi from Allahabad HC judgment |
Article 71 amendment | Shielded President's election disputes | Removed judicial oversight of top posts |
Clause 4 addition | Made PM's election final and conclusive | No appeal even for electoral malpractices |
Context: The Allahabad High Court had declared Indira Gandhi's 1971 Lok Sabha election void due to corrupt practices. This amendment was her government's response to avoid disqualification.
Reversal: The 44th Amendment Act of 1978 (passed by Janata government) repealed Article 329A and restored judicial review of elections.
Trap: UPSC swaps 39th with 44th Amendment — remember 39th restricted courts, 44th restored democracy
Trap: Don't confuse with 42nd Amendment (mini-constitution) — 39th was specifically about election disputes
Trap: The amendment protected PM's election, not the PM's policies or decisions
44th Constitutional Amendment Act 1978
Indian Polity 44th Amendment
44th Amendment Act 1978: Restoring Democratic Provisions
44th Amendment (1978) restored democratic provisions after Emergency
Passed by Janata Party government to undo Emergency-era changes
Made right to property a legal right, not fundamental right
Restored judicial review of elections by repealing Article 329A
The 44th Amendment Act of 1978 was a corrective measure passed by the Janata government to restore democratic safeguards that were undermined during the Emergency period (1975-77).
Major Provisions of 44th Amendment
Area | Change Made | Democratic Impact |
|---|---|---|
Right to Property | Removed from Part III, made legal right under Article 300A | Balanced individual rights with state needs |
Emergency provisions | Made internal Emergency harder to impose | Required written advice to President |
Judicial review | Repealed Article 329A added by 39th Amendment | Restored court oversight of elections |
Fundamental rights | Strengthened protection during Emergency | Rights cannot be suspended except Article 20-21 |
Key distinction: While the 39th Amendment restricted judicial powers, the 44th Amendment restored and strengthened them. This amendment marked the transition from Emergency authoritarianism back to constitutional democracy.
Trap: 44th Amendment removed right to property from fundamental rights — it didn't add any article placing PM beyond judicial review
Trap: Don't confuse 44th (restoration) with 42nd (Emergency-era expansion of state power)
Trap: The question statement reverses the roles — 39th restricted courts, 44th restored judicial review
99th Amendment & NJAC Controversy
Indian Polity 99th Amendment Supreme Court independence of judiciary
99th Amendment & NJAC: Supreme Court Strikes Down Judicial Reforms
99th Amendment (2014) created NJAC to appoint judges
Supreme Court struck it down in 2015 as violative of judicial independence
Collegium system continues for judicial appointments
NJAC Act 2014 was also declared unconstitutional
The 99th Constitutional Amendment Act of 2014 established the National Judicial Appointments Commission (NJAC) to replace the collegium system for appointing judges to higher judiciary. However, the Supreme Court declared both the amendment and NJAC Act unconstitutional.
NJAC vs Collegium System
Aspect | NJAC (Struck Down) | Collegium System (Current) |
|---|---|---|
Composition | CJI + 2 senior judges + Law Minister + 2 eminent persons | CJI + 4 senior-most SC judges |
Executive role | Law Minister as member | No executive participation |
Veto power | Any 2 members could veto | Majority of judges decides |
Transparency | More transparent process | Secretive, no reasons given |
Independence | Compromised due to executive presence | Maintains judicial independence |
Supreme Court's Reasoning (2015)
Judicial independence violated: Law Minister's presence gave executive undue influence over judicial appointments
Veto power concern: Two eminent persons (chosen by politicians) could block judicial appointments
Basic structure doctrine: Independence of judiciary is part of Constitution's basic structure
Primacy principle: Judiciary must have primacy in selecting judges, not equal partnership with executive
Current status: The collegium system continues despite its criticism for lack of transparency. The government and judiciary remain deadlocked on judicial appointment reforms.
Case: Supreme Court Advocates-on-Record Association v. Union of India (2015) — 4:1 majority struck down NJAC.
Trap: NJAC was struck down for compromising independence, not for any procedural flaw
Trap: The 99th Amendment was completely struck down — not just modified or suspended
Trap: Don't confuse with National Judicial Commission — NJAC was for appointments, not accountability
Judicial Independence as Constitutional Principle
Indian Polity independence of judiciary
Independence of Judiciary: Constitutional Safeguards & UPSC Context
Judicial independence is part of Constitution's basic structure
Protected through security of tenure and fixed salaries
Executive cannot interfere in judicial appointments/transfers
Parliament cannot reduce judges' salaries during their tenure
Judicial independence means the judiciary operates free from pressure or influence from the executive and legislative branches. This principle ensures fair justice delivery and maintains constitutional balance.
Constitutional Safeguards for Judicial Independence
# Judicial Independence
## Security of Tenure
- Fixed retirement age
- Removal only by impeachment
- Cannot be transferred arbitrarily
## Financial Security
- Salaries charged on Consolidated Fund
- Cannot be reduced during tenure
- Pension protected
## Functional Independence
- Suo moto powers
- Contempt of court powers
- Administrative control over subordinate courts
## Appointment Process
- Collegium system
- Executive cannot override
- Primacy of judiciary maintainedThreats to Judicial Independence & Constitutional Response
Potential Threat | Constitutional Safeguard | Recent Example |
|---|---|---|
Executive control over appointments | Collegium system (post-1993) | NJAC struck down (2015) |
Salary reduction pressure | Article 125 - salaries cannot be reduced | During financial crisis |
Arbitrary transfers | High Court judges transfer needs CJI consent | Transfer disputes |
Parliamentary interference | Judicial review power + Basic structure | 99th Amendment case |
Why UPSC Tests This Concept
Separation of powers: Core constitutional principle that ensures no branch becomes too powerful
Basic structure doctrine: Independence of judiciary cannot be amended away by Parliament
Contemporary relevance: Ongoing debates over NJAC, collegium reforms, and judicial accountability
International comparison: India's model compared with other democracies' judicial appointment systems
Trap: Independence doesn't mean no accountability — judges can still be impeached for misconduct
Trap: Administrative independence is different from judicial independence in decision-making
Trap: Collegium system ensures independence but is often criticized for lack of transparency