A Landmark Charter for Social Justice and Judicial Reform

Introduction: A Constitutional Moment

Bill No. XV of 2026 represents one of the most comprehensive constitutional reform proposals in independent India’s history. This Bill, formally titled the Constitution (Amendment) Act, 2026, seeks to fundamentally restructure the architecture of affirmative action, judicial appointments, and the very organisation of the Supreme Court of India. If enacted, it would mark a paradigm shift in how India addresses historical injustices while simultaneously democratising access to the highest echelons of the judiciary.

The Bill proposes amendments to Articles 15, 16, 124, 130, 217, and 224 of the Constitution, along with modifications to the Seventh Schedule. Each of these amendments carries profound implications for the social, political, and judicial fabric of the nation. This article provides a comprehensive legal analysis of these landmark reforms, including a critical examination of whether the Bill can withstand judicial scrutiny in light of the Supreme Court’s landmark judgment striking down the National Judicial Appointments Commission (NJAC) Act in 2015.

Part I: Revolutionary Reforms in Reservation Policy

1. Amendment to Article 15: Population-Proportionate Reservations

The Bill proposes to substitute clause (4) of Article 15 with a fundamentally restructured provision. The existing Article 15(4) permits the State to make special provisions for the advancement of socially and educationally backward classes, Scheduled Castes, and Scheduled Tribes. The proposed amendment introduces a revolutionary concept: proportionality linked to caste census data.

The amended provision mandates that special provisions for backward classes shall be “proportionate to their population in the caste census.” This marks a decisive departure from the current framework where reservation percentages have been determined through various commissions and judicial interpretations, most notably the 50% ceiling established in Indra Sawhney v. Union of India (1992).

Constitutional Significance: This amendment effectively constitutionalises the demand for a caste census as a prerequisite for reservation policy. It shifts the basis of reservation from subjective determination of “backwardness” to an objective, data-driven criterion based on population proportions. This could potentially overcome the 50% ceiling limitation, as the constitutional text itself would mandate proportionality.

2. Amendment to Article 16: Transformation in Public Employment

The Bill proposes comprehensive restructuring of Article 16 by substituting clauses (4) and (4A) with enhanced provisions. The reformed Article 16(4) introduces the concept of “adequate representation” linked to “population in the caste census.” This transforms the current discretionary framework into a more objective, census-based entitlement system.

More significantly, the new Article 16(4A) explicitly extends reservation in promotions to Other Backward Classes (OBCs), alongside Scheduled Castes and Scheduled Tribes. Currently, Article 16(4A) provides for reservation in promotions only for SCs and STs. The inclusion of OBCs in promotional reservations represents a substantial expansion of affirmative action benefits.

The provision also constitutionally enshrines “consequential seniority” in promotions, thereby settling a long-standing controversy that has been the subject of multiple Supreme Court decisions, including M. Nagaraj v. Union of India (2006) and Jarnail Singh v. Lachhmi Narain Gupta (2018).

Part II: Transforming Judicial Appointments

3. Amendment to Article 124: Democratising the Supreme Court

Perhaps the most revolutionary aspect of the Bill lies in its proposed amendments to Article 124, which governs the composition and appointment of Supreme Court judges. The Bill introduces five new clauses—(2B) through (2E)—that fundamentally reimagine judicial appointments.

Clause (2B): Reservation in Judicial Appointments

This clause mandates that appointments to the Supreme Court shall ensure “due representation” to Scheduled Castes, Scheduled Tribes, Other Backward Classes, religious minorities, and women, “in proportion to their population in the country.” This is an unprecedented provision that extends the principle of reservation to the highest judiciary—a domain that has remained untouched by affirmative action policies since independence.

The proviso to this clause creates a crucial safeguard: categories already represented proportionally shall not be subject to mandatory reservation, thereby preventing over-representation while ensuring adequate participation of historically marginalised communities.

Clause (2C): Memorandum of Procedure

This clause constitutionally mandates the framing of a Memorandum of Procedure (MoP) for judicial appointments. The MoP has been a contentious issue since the Supreme Court’s judgments in the NJAC case (2015), with disagreements between the judiciary and executive over its contents persisting for years. The Bill resolves this impasse by constitutionalising the requirement for an MoP framed by the Central Government in consultation with the Chief Justice of India.

Clause (2D): State Consultation for High Court Judge Elevations

When a High Court Chief Justice or Judge is being considered for elevation to the Supreme Court, the Central Government shall consult the State Government concerned. This provision strengthens federal principles and ensures that State perspectives are considered in judicial appointments.

Clause (2E): Time-Bound Appointments

This clause addresses the perennial problem of delayed judicial appointments by imposing strict timelines: the Central Government must either return or notify collegium recommendations within 60 days. If a returned recommendation is reiterated by the collegium, notification must occur within 30 days. The Explanation clause formally defines the “collegium” as a committee of the five senior-most Supreme Court judges, including the Chief Justice—thereby giving constitutional status to a system that has thus far existed only through judicial interpretation.

Part III: Restructuring the Supreme Court

4. Substitution of Article 130: Regional Benches and Constitution Bench

The Bill proposes a complete substitution of Article 130, transforming the Supreme Court from a single-location institution into a multi-bench structure. This addresses the long-standing demand for bringing the apex court closer to litigants across India.

The New Structure:

Constitution Bench at New Delhi: This bench shall exclusively hear cases of “constitutional importance,” with the Chief Justice having the sole authority to determine which cases qualify. This creates a specialised constitutional court within the Supreme Court structure.

Four Permanent Regional Benches: The Bill establishes Regional Benches at New Delhi (Northern Region), Chennai (Southern Region), Kolkata (Eastern Region), and Mumbai (Western Region). Each bench shall have a minimum of six judges and exercise full Supreme Court jurisdiction except constitutional matters.

Territorial Jurisdiction: The Bill meticulously delineates the territorial jurisdiction of each Regional Bench:

Northern Bench (Delhi): Uttar Pradesh, Uttarakhand, Rajasthan, Punjab, Haryana, Himachal Pradesh, and Union Territories of Jammu & Kashmir, Ladakh, Delhi, and Chandigarh.

Southern Bench (Chennai): Tamil Nadu, Kerala, Karnataka, Andhra Pradesh, Telangana, and Union Territories of Puducherry and Lakshadweep.

Eastern Bench (Kolkata): West Bengal, Bihar, Odisha, Jharkhand, Assam, Sikkim, Arunachal Pradesh, Nagaland, Meghalaya, Manipur, Tripura, Mizoram, and Andaman and Nicobar Islands.

Western Bench (Mumbai): Maharashtra, Madhya Pradesh, Chhattisgarh, Gujarat, Goa, and Dadra and Nagar Haveli and Daman and Diu.

The Chief Justice retains the power to transfer cases between benches in the interest of justice and to consolidate cases involving common questions of law before a single bench.

Part IV: High Court Reforms

5. Amendments to Articles 217 and 224: Enhanced Tenure and Diversity

Increased Retirement Age: The Bill proposes increasing the retirement age of High Court judges from 62 years to 65 years. This reform addresses the persistent shortage of judges in High Courts and brings parity with Supreme Court judges, who retire at 65. The extended tenure will ensure longer service from experienced judges and reduce the pressure of vacancies.

Reservation in High Court Appointments: New clause (2A) to Article 217 mirrors the Supreme Court provisions, mandating proportionate representation for SCs, STs, OBCs, religious minorities, and women in High Court appointments based on the population within that State.

State Government Consultation: Clause (2B) mandates consultation with State Governments in all High Court appointments, strengthening the role of States in judicial appointments—a departure from the current collegium-dominated system.

The amendments to Article 224 extend similar provisions to Additional Judges, ensuring that temporary appointments also reflect the principle of proportionate representation.

Part V: Amendment to the Seventh Schedule

6. Census as a Concurrent Subject

The Bill proposes a significant restructuring of legislative competence over census operations. Currently, Entry 69 in the Union List grants exclusive power over “Census” to Parliament. The Bill proposes to omit Entry 69 from the Union List and insert “Census” as Entry 48 in the Concurrent List.

This reform has profound implications: States would gain concurrent legislative power over census operations. This could enable States to conduct their own caste censuses, gather data specific to their populations, and implement reservation policies based on State-level demographic data. This decentralisation aligns with the Bill’s overall vision of data-driven, population-proportionate reservations.

Part VI: The Shadow of the NJAC Judgment

7. The National Judicial Appointments Commission: A Brief Recap

To properly assess the constitutional validity of Bill No. XV of 2026, one must examine it through the prism of the Supreme Court’s landmark judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), commonly known as the Fourth Judges Case or the NJAC Case.

The 99th Constitutional Amendment and the NJAC Act, 2014: In 2014, Parliament enacted the Constitution (Ninety-Ninth Amendment) Act along with the National Judicial Appointments Commission Act to replace the collegium system of judicial appointments. The NJAC was conceived as a six-member body comprising the Chief Justice of India as Chairperson, two senior-most judges of the Supreme Court, the Union Law Minister, and two “eminent persons” nominated by a committee of the Prime Minister, the CJI, and the Leader of Opposition.

The amendment was passed with near-unanimous support in both Houses of Parliament and was ratified by 16 State legislatures before receiving Presidential assent on 31st December 2014. It came into force on 13th April 2015.

The Supreme Court’s Verdict: On 16th October 2015, a Constitution Bench by a 4:1 majority struck down both the 99th Amendment and the NJAC Act as unconstitutional, holding them violative of the basic structure of the Constitution. Justices J.S. Khehar, M.B. Lokur, Kurian Joseph, and Adarsh Kumar Goel formed the majority, while Justice J. Chelameswar delivered a powerful dissent.

8. Key Grounds for Striking Down the NJAC

The majority opinion, authored primarily by Justice Khehar, identified several constitutional infirmities:

(a) Judicial Independence as Basic Structure: The Court reaffirmed that independence of the judiciary is an inviolable part of the basic structure of the Constitution. The majority held that the NJAC, by allowing executive participation through the Law Minister and “eminent persons,” created a mechanism that could compromise judicial independence.

(b) Executive Participation Creates “Reciprocity”: Justice Khehar observed that the presence of the Law Minister would breed a “culture of reciprocity” between the executive and the judiciary. He reasoned that judges appointed with executive involvement might feel indebted to the government, compromising their impartiality, especially in cases where the government is a party—which constitutes a substantial portion of litigation before the higher judiciary.

(c) “Eminent Persons” Provision Problematic: The Court found the concept of “eminent persons” vague and the manner of their selection—by a committee comprising the PM, CJI, and Leader of Opposition—objectionable. The potential for these lay members to veto judicial appointments was seen as fundamentally destructive of the primacy of the judiciary in appointments.

(d) Veto Power to Non-Judicial Members: The NJAC Act provided that a recommendation could be vetoed if any two members disagreed. This meant that the Law Minister and one “eminent person” could effectively block any judicial appointment, undermining the primacy of the Chief Justice and the judicial members.

Justice Chelameswar’s Dissent: In a notable dissent, Justice Chelameswar argued that the collegium system had become “absolutely opaque and inaccessible,” and that the proposed NJAC could serve “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between judicial and executive branches.” He cautioned against the judiciary being “the sole authority in its own appointments.”

Part VII: Can This Bill Withstand Judicial Scrutiny?

The critical question now is whether Bill No. XV of 2026, if enacted, would survive constitutional challenge before the Supreme Court. A careful analysis reveals both vulnerabilities and potential pathways to validity.

9. Key Distinguishing Features from the NJAC

(a) Preservation of Collegium Primacy: Unlike the NJAC, the present Bill does not dismantle the collegium system. Instead, it constitutionally recognises and codifies the collegium by defining it as “a Committee comprising of five senior-most Judges of the Supreme Court including the Chief Justice of India.” The collegium’s recommendations remain the initiating point for appointments, and the reiteration mechanism is preserved—if a recommendation is returned and the collegium reiterates it, the government must notify within 30 days. This ensures that ultimate primacy in judicial appointments remains with the judiciary.

(b) No Executive Member in Selection Process: The Bill conspicuously avoids including the Law Minister or any executive representative in the selection or recommendation process. The government’s role is limited to consultation (in case of High Court judge elevations) and processing recommendations within stipulated timelines. This addresses the core concern in the NJAC judgment about executive interference creating a culture of reciprocity.

(c) No Lay Person Involvement: The Bill does not introduce “eminent persons” or any non-judicial members into the appointment mechanism. The collegium remains an exclusively judicial body, thereby avoiding the objection raised against the NJAC that lay persons could exercise veto over judicial appointments.

(d) Consultation, Not Concurrence: The Bill mandates consultation with State Governments in certain appointments, but consultation is distinct from concurrence. The Second Judges Case established that consultation with the CJI means concurrence of the CJI. However, consultation with the State Government does not confer veto power—it merely ensures that State perspectives are heard. This is consistent with cooperative federalism without compromising judicial independence.

10. The Central Question: Reservation in Judicial Appointments

The most novel and potentially contentious aspect of the Bill is the introduction of reservation in judicial appointments. This provision would likely face scrutiny on multiple grounds:

(a) Does It Violate Judicial Independence? The argument against reservation in the judiciary has traditionally been that it would compromise merit and, consequently, the quality of justice. However, this argument conflates two distinct concepts: the process of appointment and the criteria for eligibility.

The Bill does not alter the eligibility criteria for judges—they must still satisfy the constitutional requirements of being advocates of ten years’ standing or holding judicial office. Reservation operates as an additional consideration among otherwise qualified candidates. This is analogous to how reservation operates in other constitutional offices. Importantly, the Bill includes a proviso that reservation shall not apply to categories already adequately represented—thus ensuring that it operates as an equalising mechanism rather than a quota system.

(b) The Diversity Argument: It can be persuasively argued that a judiciary that reflects the diversity of the nation it serves is better equipped to dispense justice. The complete absence of SC/ST representation at the level of Chief Justice of India in 75 years of constitutional history is a glaring deficit. The Bill’s provision for diversity can be defended as enhancing, rather than diminishing, the legitimacy and public confidence in the judiciary.

(c) Comparative Constitutional Practice: Several constitutional democracies ensure diversity in their highest courts. The United Kingdom’s Judicial Appointments Commission is mandated to “encourage diversity in the range of persons available for selection.” South Africa’s Constitution explicitly requires the Judicial Service Commission to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa.” The Bill’s approach is thus not unprecedented in comparative constitutional law.

11. Regional Benches and the Basic Structure

Interestingly, the Bangladesh Supreme Court in Anwar Hossain Chowdhury v. Bangladesh (1989) struck down a constitutional amendment creating permanent High Court benches outside Dhaka, holding it violated judicial independence. However, the Indian Bill is distinguishable:

First, the Bill preserves the unity of the Supreme Court as one institution—it does not create separate courts but permanent benches of the same court. Second, the Chief Justice retains administrative control over the allocation of judges and cases, ensuring institutional coherence. Third, the Constitution Bench at Delhi will continue to decide matters of constitutional importance, maintaining uniformity in constitutional interpretation.

The Supreme Court itself, in various judgments and Law Commission recommendations, has supported the idea of regional benches to enhance access to justice. The 229th Law Commission Report recommended four regional benches. The present Bill implements this long-standing recommendation through constitutional amendment.

12. The Memorandum of Procedure Provision

The Bill’s provision requiring the Central Government to frame an MoP “in consultation with the Chief Justice of India” may face scrutiny. The NJAC judgment affirmed that the CJI’s opinion must have primacy in matters of judicial appointments. If “consultation” is interpreted merely as seeking views without the obligation to accept them, this provision could be challenged.

However, this can be addressed by interpreting “consultation” in this context to mean meaningful consultation requiring substantial deference to the CJI’s views, consistent with the Second Judges Case. The Supreme Court, if called upon to interpret this provision, could read it down to ensure compliance with the basic structure doctrine.

13. Time-Bound Appointments: A Welcome Reform

The provision mandating action on collegium recommendations within 60 days (or 30 days for reiterations) is likely to withstand scrutiny. It addresses a genuine grievance—the executive’s practice of indefinitely delaying appointments has been criticised by the judiciary itself. This provision actually strengthens judicial independence by ensuring that collegium recommendations are implemented promptly, reducing the executive’s capacity for obstruction through delay.

Part VIII: Conclusion—A Cautious Optimism

The Constitution (Amendment) Bill, 2026 represents a thoughtfully crafted reform proposal that appears to have learned from the fate of the NJAC. By preserving collegium primacy, avoiding executive participation in the selection process, and constitutionalising time-bound appointments, the Bill addresses the core concerns that led to the NJAC’s invalidation.

The provision for reservation in judicial appointments is novel and will undoubtedly face challenge. However, framed as it is—as a directive to ensure proportionate representation without altering eligibility criteria or conferring veto power on non-judicial authorities—it has a reasonable prospect of surviving basic structure scrutiny. The argument that diversity enhances rather than diminishes judicial legitimacy provides a principled basis for upholding this provision.

The regional benches provision implements a long-standing demand supported by the Law Commission and does not fragment the Supreme Court’s jurisdiction or undermine its unity. The census-related amendment may raise federal concerns but does not touch upon judicial independence.

Key Factors That Favour Constitutional Validity:

• Collegium system preserved and constitutionally codified

• No executive member in the appointment mechanism

• No lay person involvement with veto power

• Reiteration mechanism retained, ensuring ultimate judicial primacy

• Time-bound appointments strengthen, not weaken, judicial independence

• Reservation framed as diversity enhancement among qualified candidates

The Bill embodies Dr. B.R. Ambedkar’s constitutional vision of social justice while respecting the basic structure doctrine evolved through seven decades of constitutional jurisprudence. If Parliament passes this Bill with the required special majority and State ratifications, and if the Supreme Court approaches it with the constitutional statesmanship that the moment demands, this reform could mark a new chapter in India’s constitutional evolution—one that reconciles social justice with judicial independence, and popular sovereignty with constitutional governance.

As Justice Chelameswar wisely observed in his NJAC dissent, “Neither combatants wins. Constitution survives.” It is in this spirit that the present Bill must be evaluated—not as an assault on judicial independence, but as an attempt to perfect our constitutional democracy by making it more inclusive, accessible, and accountable.

About the Author

Advocate Ravinder Singh Dhull is a practicing Advocate at the Punjab & Haryana High Court since 2003 and former Additional Advocate General for the Government of Haryana. He specialises in Constitutional Law, Public Interest Litigation, and Service Matters. He currently serves as National Media Panelist for the Indian National Congress and State Spokesperson for Haryana Pradesh Congress Committee. He is the founder of the Centre for Socio Legal Research and Aid and has filed over 3,000 RTI applications as part of his advocacy for transparency and good governance.