Chief Justice of India (CJI) Hl Dattu has made a surprise exit from the National Judicial Appointments Commission (NJAC). The CJI took this step days after a five-judge Constitution Bench allowed the Government to go through the NJAC route to confirm the appointment of Additional Judges, whose tenures are ending within the next two months.
In a letter addressed to Prime Minister Narendra Modi on Saturday, Justice Dattu refused to be part of a three-member Selection Committee to nominate two eminent persons to complete the six-member NJAC panel. The Prime Minister and leader of Opposition are the other two members of the Committee to pick up the eminent persons.
In his letter to the PM, the CJI said that pending the challenge to NJAC before the Constitution Bench it was not proper for him to be part of the NJAC proceeding. Justice Dattu’s decision has thrown a spanner in the working of NJAC as the CJI plays a crucial role in the Selection Committee as also in the six-member Search Committee. This committee includes the CJI, two senior most judges of the Supreme Court, Union law Minister and two eminent persons. With the CJI backing out, the possibility of the other two judges to similarly withdraw cannot be ruled out. With the two eminent persons yet to be appointed, the NJAC currently has only the law Minister as a confirmed participant.
Faced with this piquant situation, Attorney General Mukul Rohatgi approached the five-judge Constitution Bench headed by Justice JS Khehar to seek an interim orders. Rohatgi said that a “stalemate” has reached and blamed the CJI for taking an “unconstitutional” decision. He even insisted on an order asking CJI to participate.
Senior lawyers Fali Nariman who presented the petitioners against the NJAC suggested that the Selection Committee sans CJI can decide on the appointment of eminent persons and the consequent re-appointment of Additional Judges. But Ram Jethmalani was of the view that the Act and the 99th Constitutional Amendment must be stayed. But former Attorney General K Parasaran, who appeared for Rajasthan Government, pointed out that there was no precedent for staying a Constitutional Amendment. Senior counsel KK Venugopal, who appeared for Madhya Pradesh, criticised the CJI’s decision, said, “Is it appropriate for CJI to say I will not implement the Constitution as it stands.”
But the Bench refused to ask the CJI to participate in the “larger interest of country and judiciary”. Moreover, the Bench did not rule out possibility of the other two judges refusing to be part of NJAC. “We can’t ask somebody to do something which he does not wish to do,” it said. After hearing all lawyers at length, the Bench rose for 10 minutes and re-assembled to convey that a consensus had reached to continue hearing the matter and pass any interim orders whenever necessary. Senior lawyer Harish Salve, who appeared for Haryana Government broke the stalemate by suggesting the Bench to continue with the hearing of case as Additional Judges will end their tenure only after May 20. By then, Court can form a prima facie opinion and consider passing interim orders, Salve said.