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.

Justice Dave recuses from constitution bench on NJAC