The five-judge Constitution Bench could not begin its maiden hearing to test the validity of the National Judicial Appointments Commission (NJAC) Act on Wednesday as the lead judge in the case recused himself citing conflict of interest. Now, the Chief justice of India will have to reconstitute the Bench, although no timeframe has been set for taking up the petitions.
Justice Anil R Dave chose to voluntarily opt out after the newly-notified law made him an ex-officio member of the six-member NJAC panel to appoint judges. Senior advocate Fali S Nariman, who appeared for Supreme Court Advocates-on-Record Association, one of the petitioners challenging NJAC, presented a note to Court asking Justice Dave to make it clear that as the Presiding Judge of the Bench, he won’t take part in the NJAC proceedings.
“There is a conflict of interest. I am saying let Justice Dave preside the bench but not participate in NJAC. He cant be compelled to sit in NJAC,” said Nariman. Interestingly, minutes before Nariman spoke, the Court had chided another petitioner lawyer Mathew J Nedumpara for asking Justice Dave to recuse from the case. Nedumpara was asked to withdraw his request after being warned of serious consequences.
Justice Dave had referred the petitions against NJAC to a larger Bench on April 7 and it was this reason that he headed the Constitution Bench, comprising also Justices J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Goel. On Nariman’s submission, Justice Joseph asked whether Justice Dave had the option to refuse being member of the NJAC panel being a Constitutional post.
Other judges on the Bench were clearly disturbed over the sudden turn of events. Attorney General Mukul Rohatgi regretted such a request had come from a senior lawyer and condemned any move to replace the bench hearing the case. He cited precedents where full court decisions get challenged before a division Bench of the same High Court and get set aside.
“The job of NJAC is to pick out the best (of the judges). That was also the job of the collegiums,” he added. Senior advocate Dushyant Dave who represented Supreme Court Bar Association (SCBA) warned that the argument by the petitioners is a “preposterous trap” which should be avoided at all cost. On notifying the law just before arguments commenced on the NJAC validity, Rohatgi said that the delay was on account of pendency of petitions. “Government is answerable to Parliament,” AG argued adding that once the matter was referred to Constitution Bench, it could not wait indefinitely as both Acts were unanimously passed by Parliament and ratified by over 20 States.