Supreme Court to decide on five judges who will hear the validity of NJAC Act

New Delhi: The issue of conflict of interest and doctrine of bias has once again cropped up before a constitution bench of the Supreme Court set up to hear the constitutional validity of the law replacing the appointment of judges by the collegium system. After some of the parties in the matter raised the issue of heading the five-judge bench headed by Justice JS Khehar, it decided that before going into merits of the impugned law it will settle the issue as to which judges of the Supreme Court can hear it. [caption id=“attachment_2197302” align=“alignleft” width=“380”]  Supreme Court. AFP[/caption] Justice Khehar said he had “no desire” to hear this matter. He was hearing it because of the fact that Chief Justice of India (CJI) had constituted the bench with him as part of it after Justice AR Dave had recused himself, he said. He 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. “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,” the bench said. At the outset, one of the lawyers, Mathews J Nedumpara raised the issues of bias and conflict of interest in Justice Khehar heading the bench, saying that he has been part of the collegium. Senior advocate Fali S Nariman, who was 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 said that he is withdrawing his objection. The bench then 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,” Rohatgi said. Senior advocate KK 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, said, “The issue (of NJAC) is very important and needs to be settled. But if we get into all these issues, everything will be delayed.” The apex court on April 16 had constituted a new bench to examine validity of the law replacing the collegium system of appointment of judges, after Justice Dave had recused himself from the Constitution bench hearing the case. Justice Dave, who was heading five-judge Constitution bench, had recused from the matter on April 15 after SCAORA and other petitioners said that since he had become a member of the NJAC under the new law, it would not be proper for him to hear the matter. However, the submission of Nariman, who appeared for SCAORA, was opposed by Attorney General (AG) Mukul Rohatgi and Supreme Court Bar Association (SCBA), which had supported the Centre in its endeavour to replace the over two-decade-old collegium system of appointment of judges by judges. Rohatgi had contended that the suggestion of SCAORA is wholly regrettable and condemnable. He was supported by SCBA President who had said that SCAORA’s objection was preposterous. Their submission had come after Nariman had said that the provisions of the Constitution (99th amendment) Act 2014 and of the NJAC Act 2014 have been brought into force from April 13, 2015. “As a consequence, the presiding judge on this bench, Justice A R Dave has now become (not out of choice but by force of statute) a member ex-officio of the NJAC whose constitutional validity has been challenged. “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,” Nariman had submitted. 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. 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 government had on April 13 notified the NJAC Act along with a Constitutional Amendment Act (99th Amendment Act) to give constitutional status to the new body to appoint judges. NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014. Under the collegium system which came into existence in 1993 after a Supreme Court judgement, five top judges of the apex court recommend transfer and elevation of judges to Supreme Court and 24 High Courts. According to the new Article 124(A) inserted in the Constitution, two eminent persons will be nominated to the Commission as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or where there is no such LoP, then the leader of single largest Opposition party. One of the eminent persons will be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination. The NJAC will be headed by the Chief Justice of India. Two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel. Secretary (Justice) in the Union Law Ministry will be the convenor of the NJAC. SCAORA, Bar Association of India (BAI) and some individual lawyers have challenged the new system of appointment of judges while the Centre has got support from SCBA and eminent jurists like T R Andhyarujina in its effort to push out collegium system of appointment of judges by the judges. PTI