New Delhi, April 15
The constitution bench of
the Supreme Court on Wednesday did not hold the much-awaited hearing on
the statutory validity of the controversial National Judicial
Appointment Commission Act (NJAC) and the supporting constitutional
amendment.
The development took place as Justice Anil R. Dave,
presiding over the five-judge bench, recused himself from hearing the
matter following objections by petitioner Supreme Court
Advocates-On-Record Association (SCAORA).
Justice Dave recused
himself after senior counsel Fali Nariman, appearing for the SCAORA,
told the five-judge constitution bench that the National Judicial
Appointment Commission has been notified and Justice Dave was an
ex-official member on it. And, thus, he was in a situation of
conflicting duties.
Besides Justice Dave, other judges on the
constitution bench are Justice J. Chelameswar, Justice Madan B. Lokur,
Justice Kurian Joseph and Justice Adarsh Kumar Goel.
Nariman told
the constitution bench that he wants Justice Dave to hear their
challenge to the constitutional validity of the NJAC Act, 2014, and the
supporting constitutional amendment for it, but then he should stay away
from the NJAC.
"The NJAC has been notified. Justice Dave is the
ex-officio member of NJAC. There is a conflict of two conflicting
duties. I don't want him not to hear the challenge, but then he should
not be part of the NJAC, teach the government a lesson," Nariman told
the court.
Flaying the government for notifying the NJAC Act and
the constitution amendment, Nariman said that the government has
overreached itself by notifying it ahead of the hearing by the apex
court.
"It is highly improper, though not illegal," Nariman told
the court, and added: "How does it look before the country? He (Justice
Dave) is out of compulsion in the NJAC. Don't participate in the NJAC.
Let them do what they want."
Describing the contentions raised by
Nariman as "unfounded" and defending the notification as "not being
improper", Attorney General Mukul Rohatgi told the court: "Can we wait
indefinitely?"
"The government is accountable to parliament. The
parliament will ask: We enacted the law long ago, it was assented to on
Dec 31, 2014. Why has it not been notified?"
"It should have
been immediately notified, but it wasn't as petitions were filed,"
Rohatgi said, defending the notification of the NJAC Act and the
constitution amendment two days before the apex court began hearing of
challenge to their constitutional validity.
Urging Justice Dave
to continue to hear the matter, the attorney general told the court that
there were several instances where decisions taken by the judges were
challenged before them on the judicial side.
Rohatgi said that
selecting the "best brain" by the NJAC was a distinct function than
sitting in the court deciding cases on judicial side.
These are separate functions, the attorney general told the court.
Describing
the suggestion to recuse as "preposterous", senior counsel Dushyant
Dave, who is the Supreme Court Bar Association president, said the
petitions before the constitution bench "involve interpretation of the
Constitution. Validity of the law has nothing to do with his statutory
duties under the NJAC. Judges are part of appointing process in several
Tribunals. So this suggestion for recusal is preposterous."
The
Supreme Court Bar Association (SCBA) is supporting the move for the NJAC
to replace the collegium system of appointing judges to higher
judiciary.
In a note to the court, the SCAORA said that after the
notification of the Constitution (Ninety-Ninth Amendment) Act, 2014,
and the National Judicial Appointment Commission Act, 2014, as a
consequence, "Justice Anil R. Dave has now become (not out of choice but
by force of Statute) a member ex-officio of the National Judicial
Appointment Commission, whose constitutional validity has been
challenged".
The SCAORA said that it would be appropriate if "it
is declared at the outset by an order of the ... court - that the
presiding judge on this bench will take no part whatever in the
proceedings of the National Judicial Appointment Commission".
Under
the NJAC Act, 2014, the judicial side in the six-member body will be
represented by the Chief Justice of India H.L. Dattu and two other
senior-most judges of the apex court. The CJI will also chair the
meetings of the NJAC.
At present, after Chief Justice Dattu, the other two senior-most judges are Justice T.S. Thakur and Justice Anil R. Dave.
