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SC faces fresh hurdle in hearing NJAC issue

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New Delhi: The Constitution bench of Supreme Court, set up to go into the validity of the new law replacing the collegium system of appointment of judges, failed to commence hearing today with issues of conflict of interest and doctrine of bias cropping up again. When the five-judge Constitution bench headed by Justice J S Khehar began hearing today, some of the lawyers opposing the new law–National Judicial Appointments Commission Act–raised the issue of conflict of interest and doctrine of bias against him.

Instead of going into the question of the validity of the new law, the said it will first hear tomorrow and settle the issue as to which five judges can be a part of the Constitution bench. “We should decide who will hear the matter,” said the bench, which also comprised Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel. “It is a very vital issue and we cannot keep it pending. We intend to pass an order as to who will hear the matter,” the bench said, while expressing concern over the road blocks cropping up in deciding the validity of Constitution (99th amendment) Act 2014 and the NJAC Act 2014.

“The issue (of NJAC) is very important and needs to be settled. But if we get into all these issues, everything will be delayed,” the bench said. Justice Khehar said the issue of conflict of interest can take various dimensions and there could be an eventuality a judge can even be asked not to hear the matters relating to land acquisitions only because the judge concerned may be having a small amount of land.


The issues of conflict of interest and bias have been flagged because the NJAC will be headed by the CJI, two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel.

When Justice A R Dave was heading the bench, senior advocate Fali S Nariman had raised the issue saying that being the second senior-most judge of the apex court he would be a member of the NJAC and it would not be proper for him to hear the batch of petitions challenging the validity of the Act. At the outset when reservations were expressed towards Justice Khehar, who is at present a member of the outgoing collegium, heading the bench, said he had “no desire” to hear this matter.

The judge, who is number three in hierarchy after Chief Justice of India (CJI) H L Dattu, said he was hearing the matter because the CJI had constituted the bench with him as part of it after Justice Dave had recused himself when identical issues were raised against him. Justice Khehar said the moment his name was decided to head the bench, he had written to the CJI that he will not be a part of either the NJAC or the collegium till the matter is finally heard and decided.

During the hearing when advocates were making submissions that the CJI, future CJIs and judges in the collegium and those becoming members of the NJAC should not hear the matter, Justice Khehar said, “who can hear it, who cannot hear it. All this is ridiculous. Let us lay down the principles”.

While Nariman and others were making submissions on the reasons for the withdrawal of Justice Dave and why he should also recuse himself, Justice Khehar said “If your view is that I should not hear it, why the hell I should be hearing the matter”. Later, he made it clear that he can only be a part of the bench if there was no objection from anybody.

At the start of the hearing, one of the lawyers, Mathews J Nedumpara, raised the issues of bias and conflict of interest in Justice Khehar heading the bench, saying that he has been part of the collegium.

Nariman, who was appearing for Supreme Court Advocates on Record Association (SCAORA), one of the petitioners challenging the Act, suggested that the matter can be heard by the CJI along with two senior-most judges and two other judges of CJI’s choice. When Attorney General Mukul Rohatgi and senior advocate Dushyant Dave submitted that Nariman had raised the issue of recusal of Justice Dave, he denied it. Quoting from his written submission, he said he had only explained the legal position that must be pondered over by the judge heading the bench.

He referred to the submission in which he had stated the provisions of the Constitution (99th amendment) Act 2014 and of the NJAC Act 2014 have been brought into force from April 13, 2015. “As a consequence, the presiding judge on this bench, Justice A R Dave has now become (not out of choice but by force of statute) a member ex-officio of the NJAC whose constitutional validity has been challenged.

“It is respectfully submitted that it would be appropriate if it would be declared at the outset, by an order of this court, the presiding judge of this bench will take no part whatever in the proceedings of the NJAC,” Nariman had submitted.

However, when the bench sought the opinion of Rohatgi, he said that the ideal situation would have been to bring Justice Dave back on the bench as there was no conflict of interest. “Most of the times judges decide same issues in administrative as well as in judicial side,” Rohatgi said, adding that now a piquant situation has been created which will go down when any judge will be assigned to hear the matter.

When the AG favoured calling back Justice Dave, the bench said, “he has exercised his choice”. Senior advocate K K Venugopal supported Rohatgi and submitted that “it was very unfair to ask Justice Dave to recuse from hearing the petitions challenging the NJAC Act”.

Senior advocate Harish Salve also opposed the recent practice that judges are often asked to recuse from a particular matter and agreed with other lawyers that there was a need to lay down principles and parameters on recusal on the grounds of conflict of interest and bias. “Both ways it is part of constitutional duty,” he said referring to the work of judges in judicial as well as administrative side.

Hinting towards recent incidents of forum shopping, Salve said, “I am sorry to say this. This court has become over-sensitive to noise made outside.” He said that the issue of recusals be settled “once and for all” as people raise issues when rulings are not to their likings.

The bench, which gave a patient hearing to several advocates including senior counsel K Parasaran, Rajeev Dhawan and others who were appearing for one or the other parties, said it was necessary to settle the issue about recusals, vis-a-vis conflict of interest and bias by laying down guidelines. The apex court on April 16 had constituted a new bench to examine validity of the law replacing the collegium system of appointment of judges, after Justice Dave had recused himself from the Constitution bench hearing the case.

Justice Dave, who was heading five-judge Constitution bench, had recused from the matter on April 15 after SCAORA and other petitioners said that since he had become a member of the NJAC under the new law, it would not be proper for him to hear the matter.