New Delhi : The 5-judge Constitutional Bench hearing on validity of the National Judicial Appointments Commission Act could not take off on Wednesday as presiding judge Anil R Dave recused himself from the bench following objections by the petitioner on ground of conflict of interest.
Justice Dave recused himself from hearing when Fali S Nariman, appearing for a lawyers’ body, pointed out that with the April 13 gazette notification, the judge had become a part of the National Judicial Appointment Commission, whose constitutional validity has been challenged.
Under the NJAC Act, the commission will be headed by the Chief Justice of India while its members will be two senior-most apex court judges, two eminent persons and the Union Law Minister. Being the second senior-most judge after Justice T S Thakur, Justice Dave automatically becomes a NJAC member.
Nariman did not ask Justice Dave to recuse himself but argued that there is now a “conflict of two conflicting duties.” Attorney general Mukul Rohatgi called his objection as “unfounded,” “regrettable” and “completely condemnable.” The Supreme Court Bar Association, which is supporting the NJAC, also dubbed Nariman’s objection as “preposterous.”
Rohatgi argued that it is a well known fact that judges fulfill more than one role. They have been a part of the earlier collegium also and while continuing to discharge judicial functions, they were involved in administrative measures too. “So, they can be a part of the new judicial commission apart from discharging judicial functions…and so there is no conflict of interest.”
The Constitution Bench was scheduled to hear the petitions challenging the NJAC from this week, but the government rushed with its gazette notification.
Nariman said the April 13 notification may not be illegal but its issue was “improper” since the validity of the Act was already under scanner.
Rohatgi protested this saying that the government was within its powers to issue the notification.
Stressing that it was absolutely proper for the government to come out with the notification, the Attorney General said the central government is answerable to Parliament and if Parliament has passed the law, it cannot be put in limbo indefinitely. In all probability, the Chief Justice will now have to constitute another Constitution Bench to hear the case.
