NJAC case: The slippery slope of the conflict of interest argument

A five-judge bench of the Supreme Court started hearing arguments yesterday (21 April) on the validity of the constitutional amendment and supporting law that replaces a collegium, whose members are only from the judiciary, to appoint and transfer judges of high courts and the Supreme Court of India. The new laws mandate the creation of a National Judicial Appointments Commission (NJAC) whose members are a mix of judiciary and executive. Given that this law under constitutional review radically changes the way in which the judiciary in our constitutional courts will be appointed (and transferred) and, therefore, has an impact spanning decades, the ongoing hearing is extremely critical. However, what has delayed the exchange of arguments on this landmark juncture is a conflict of interest roadblock. Senior advocate Fali Nariman, who is appearing on behalf of the Supreme Court Advocates on Record Association, which is challenging the NJAC law, had last week circulated a note raising an objection to Justice Anil Dave being on the bench hearing the matter while already being an ex-officio member of the NJAC. [caption id=“attachment_2206648” align=“alignleft” width=“380” class=" “]  Representational image.[/caption] Nariman stated that “it would be appropriate if it is declared at the outset” that Justice Dave will take “no part whatsoever in the proceedings of NJAC”. Although Nariman later stated that he didn’t ask Justice Dave to recuse himself from hearing the legal challenge, his note was unequivocally clear that, firstly, there was a conflict of interest between his duties as an NJAC member and as a judge hearing a challenge to NJAC and, therefore, secondly, that Justice Dave should decide between the two duties. Immediately after the circulation of the note, Justice Dave recused himself from hearing the case. Thereafter, the Chief Justice of India assigned another senior judge, Justice JS Khehar, to head the five-judge Bench. This resulted in an objection from some petitioners to Justice JS Khehar being on the bench given that he was a member of the collegium and is a future CJI. This has, therefore, led to a situation where the five-Judge Bench will first decide who among them can hear this challenge (i.e., the conflict of interest issue) before examining the constitutionality of the NJAC law. In a sense, this has added one more level to cross before actual arguments on why the NJAC system should stay or go commence. In addition to using up the valuable time of all five judges who would be hearing this conflict of interest issue, objections to certain judges hearing the NJAC case are indicative of a pattern that puts us on a slippery slope. Indeed, to be sure, there are several situations where judges can be considered to have a conflict of interest in a case before them. For example, if a judge’s close relative is a lawyer representing one of the parties in a case before him, that would be a clear case of conflict of interest. In this situation, it isn’t as if Justice Dave or Justice Khehar are stockholders in a company whose fate is being determined by them in a case before them. What really is alleged to be in conflict is a judge’s statutory duty as is mandated in the NJAC law. Under Article 124A to the Constitution (which was inserted through the recent constitutional amendment), the members of the NJAC who come from the judiciary are the Chief Justice of India and two other senior judges of the Supreme Court next to the CJI. These three judges are ex-officio members of the NJAC, ie, by virtue of the office they hold. The law, therefore, mandates that these three judges be members of the NJAC. It isn’t as if a judge voluntarily opts to be a part of the NJAC thereby giving rise to a theoretical ‘interest’ that can be in conflict. Therefore, what Nariman and others objecting to the presence of the two judges have done is to doubt the ability of those judges to hear the constitutional challenge to the NJAC impartially and objectively just because they are mandated under law to be members of the NJAC. Those opposing the presence of certain judges on the bench have, however unwittingly, brought down a constitutional duty of a judge to the level of a self-interest which can be in conflict and which would, therefore, necessitate a judge to step down. In the recent past, in the Teesta Setalvad anticipatory bail case, counsels supporting Teesta argued that a judge initially hearing the case should recuse himself because PM Modi was invited to his son’s wedding. To portray social conviviality between members of the judiciary and executive into a conflict is a bit rich. Worse, though, is to say that judges of the highest court of our land cannot discharge two statutory and constitutional functions without bias. In the past, it was the SC itself which shifted the power of appointment and transfer of judges from the executive to itself (through the formation of the three–member collegium that operated until the NJAC law was passed). Hopefully, the SC will not waste a lot of valuable time on the conflict-that-wasn’t and quickly get to whether the Centre and Parliament’s bold attempt to infuse balance and transparency in how upholders of rule of law are selected passes the constitutional tests.