The five-judge Bench constituted by Supreme Court to hear validity of the National Judicial Appointment Commission (NJAC) law has again hit the “conflict of interest” roadblock with the court settling down to first determine whether CJIs-in-waiting or future members of NJAC need to at all withdraw hearing from the case.
On Tuesday, it was a repeat of what happened last week when some petitioners objected to Justice Anil Dave heading the five-judge Bench. The judge had to recuse following which Justice JS Khehar took his place. Before the proceedings could start, advocate Mathew Nedumpara asked Justice Khehar to withdraw from the case being a member of the collegium and member of NJAC from December 2015.
Senior advocate Fali Nariman appearing for Supreme Court Advocates-on-Record Association followed suit. He said, “let somebody in reckoning who is not to become CJI or a NJAC member sit on the Bench.” This was sufficient indication that the presence of Justice Khehar on the Bench was also being challenged. The judge replied, “If your view is I shouldn’t be on the Bench, why the hell should I be.” Justice Khehar clarified he had no interest to be on the Bench but for the insistence by Chief Justice of India. “After my name appeared, I wrote to CJI that I would not like to be part of any proceedings whether it is this system (NJAC) or that system (collegium)… Personally, Justice Anil Dave was the best person to be there on the Bench.”
The Bench decided to lay down guidelines on whether judges in reckoning to be CJIs or NJAC members will attract conflict of interest. Attorney General Mukul Rohatgi told the Bench that the correct thing to do was to have Justice Dave back. He was backed by Supreme Court Bar Association president Dushyant Dave. Senior lawyers Harish Salve and KK Venugopal appearing for State Governments asked the Bench to continue with the case and not be sensitive to voices outside. Nariman offered not to press his demand but a while later contradicted himself by suggesting that CJI, two seniormost judges along with two judges of CJI’s choice would be best suited to hear the conflict of interest question.