SC adjourns NJAC petitions till tomorrow to decide which judges to hear and decide the challenge

In another important event in the Anti-NJAC drama, Courtroom 5 of the Supreme Court again echoed with verses of the controversial doctrine of issue of conflict of interest and the doctrine of bias once again before the freshly crafted constitution bench of the set up specially to hear the constitutional validity of the legislative enactment replacing the self made Collegium system to appoint and transfer judges of Constitutional courts.

When some of the parties in the matter raised the issue of rightful heading the five-judge bench by Justice J S Khehar, it was decided that before going into merits of the impugned law it is necessary to settle the issue as to which judges of the Supreme Court can hear it.

In an open court, Justice Khehar said that he had "no desire" to hear this matter. He was hearing it because the Chief Justice of India (CJI) had constituted the bench with him as part of it after Justice A R Dave had recused himself. Justice Khehar also said the moment his name was decided to head the bench, he wrote to the CJI that he will not be a part of either the National Judicial Appointments Commission (NJAC) or the collegium till the matter is finally heard and decided.

"We should decide who will hear the matter," the bench also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel said, while posting the matter for hearing tomorrow.

The bench acknowledged sensitivity of the matter and observed "It is a very vital issue and we cannot keep it pending. We intend to pass an order as to who will hear the matter."

At the threshold, one of the lawyers, Mathews J Nedumpara had raised the issues of bias and conflict of interest in Justice Khehar heading the bench, stating that he has been part of the collegiums which has also made appointments.

Senior advocate Fali S Nariman, appearing on behalf of Supreme Court Advocates on Record Association (SCAORA), suggested that the matter can be heard by the CJI along with two senior-most judges and two other judges of CJI's choice. He also withdrew his objection.

The bench also sought the opinion of Attorney General (AG) Mukul Rohatgi on the issue.
Rohatgi said that the ideal situation would have been to bring Justice Dave back on the bench as there was no conflict of interest."Most of the times judges decide same issues in administrative as well as in judicial side," he said.

Senior advocate K K Venugopal also submitted that it was very unfair to ask Justice Dave to recuse from hearing the petitions challenging the NJAC Act.Senior advocate Harish Salve also opposed the recent practice that judges are often asked to recuse from a particular matter and agreed with other lawyers that there was a need to lay down principles and parameters on recusal on the grounds of conflict of interest and bias.

The bench which gave patient hearing to several advocates including senior counsel K Parasaran, Rajeev Dhawan and others who were appearing for one of the other parties, observed, "The issue (of NJAC) is very important and needs to be settled. But if we get into all these issues, everything will be delayed."

In the last hearing Nariman had contended "It is respectfully submitted that it would be appropriate if it would be declared at the outset, by an order of this court, the presiding judge of this bench will take no part whatever in the proceedings of the NJAC," in a reply to which Justice Dave had recused from the matter.

A three-judge bench of the apex court had on April 7 referred to a five-judge Constitution Bench a batch of petitions challenging the validity of NJAC Act to replace the collegium system of appointing judges to higher judiciary in a non reportable judgment and without binding the bench by framing points of reference.

As the court had refused to stay the implementation of the law with the observation that all the issues arising out of the petitions would be decided by the Constitution Bench, the NDA Government notified the act.

As the Act has been notified, the Collegium system has been expressly struck off and the appointments can only be made through the commission (NJAC). Notably, many Chief Justices of High Courts like G Rohini J(Delhi HC), Manjula Chellur J(Kolkata HC), S.K.Kaul J(Madras HC) and D.Y.Chandrachud J were expecting orders for elevation soon which now lies in total limbo as judicial discipline does not allow using a statute book of such delicate nature when it stands impugned. However, vacancies should not be kept unanswered in Constitutional Courts as well!