The court had already passed an order of a 5-judge Constitution bench to hear the petition challenging the legislation passed by the Parliament. However, the hearing has been a non-starter with lack of unanimity between the petitioners and respondents on the issue of composition of the special bench.
On the 15th April, the hearing on a petition challenging the new legislation for the appointment of judges could not happen as the lead judge Justice AR Dave recused himself from hearing the matter. Justice Dave had withdrawn from hearing the petition after the objections from petitioners.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).
Representing the petitioners, senior advocate and legal luminary Fali S Nariman had last week argued that “the presiding judge (Justice AR 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”.
After which Justice Dave recused himself from hearing the matter.
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.
But on Tuesday, the petitioners again contended that the new lead judge Justice JS Khehar should “ponder” over if he should be hearing the matter as he too is in the likelihood of becoming a member of NJAC after Chief Justice HL Dattu retires in December this year. Justice Khehar was appointed the lead judge of the bench constituted by the CJI after Justice Dave’s recusal.
However, the matter was then adjourned for a day to resume on Wednesday.
Responding to the contentions raised by the petitioners, Justice Khehar told “If you go on like this you can’t decide anything this way”. He also said he has no “personal interest or desire” to hear the NJAC challenge. In fact, he had written to Chief Justice Dattu that he would not participate in the collegium until these petitions were decided.
Earlier, 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.
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 Leader of Opposition, then the leader of single largest Opposition party.