Constitution bench hearing on a petition challenging the new legislation for the appointment of judges could not happen today as the lead judge of the bench recused himself from hearing the matter. The hearing will resume in the matter once the Chief Justice reconstitutes the 5-judge bench.
Justice AR Dave, who was heading the five-judge Constitution bench, withdrew from hearing the petition challenging the National Judicial Appointments Commission (NJAC) after the objections from petitioners. Supreme Court Advocates on Record Association (SCAORA) and other petitioners’ contention was that it wouldn’t be prudent on the part of Justice Dave to preside over the hearing since he has been appointed a member of National Judicial Appointments Commission (NJAC).
On 13th April, Central government notified the setting up of NJAC, which has now replaced hitherto Collegium system to elevate and appoint the judges of Supreme Court and the High Court.
Representing the petitioners, senior advocate and legal luminary Fali S Nariman argued that “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”.
But the arguments extended as Attorney General Mukul Rohatgi objected to the petitioners, terming their contention regrettable and condemnable.
“It is a well known fact that judges fulfil more than one role. They have been a part of earlier collegium also and while continuing to discharge judicial function, they were involved in administrative measures too. So, they can be a part of new judicial commission apart from doing judicial functions,” the AG told court.
Besides Justice Dave, others in the five-judge bench constituted by the Chief Justice include Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel.
Earlier last week, the three-judge bench headed by the Chief Justice had referred the matter challenging the legislation passed by the Parliament to be heard by a Constitution bench. In the last hearing, the top court had refused to stay the implementation of the new law to elevate and appoint the judges even as it left the hearing on the petitions.
As per the NJAC, judges will be elevated and appointed by the 6-member committee consisting of the Chief Justice of India, two immediate senior-most apex court judges, the two eminent persons and the Law Minister.
Those two eminent persons will be in turn nominated by the committee consisting of the Prime
Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or where there is no such LoP, then the leader of single largest Opposition party.
The NJAC will be headed by the Chief Justice of India. Secretary (Justice) in the Union Law Ministry will be the convenor of the NJAC.