No SC decision yet on who will hear judges appointment plea

'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 issue of conflict of interest and doctrine of bias has once again cropped up before a Constitution bench of the Supreme Court set up to hear the Constitutional validity of the law replacing the appointment of judges by the collegium system.

After some parties in the matter raised the issue of the five-judge bench headed by Justice J S Khehar, it decided that before going into merits of the impugned law it would settle the issue as to which Supreme Court judges can hear it.

Justice Khehar said he had 'no desire' to hear this matter. He was hearing it because the Chief Justice of India had constituted the bench with him as part of it after Justice A R Dave recused himself, the judge said.

When his name was decided to head the bench, Justice Khehar wrote to the CJI that he would not be a part of either the National Judicial Appointments Commission or the collegium till the matter is finally heard and decided.

'We should decide who will hear the matter,' the bench -- also consisting of Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel -- said, while posting the matter for hearing on Wednesday, April 22.

'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.

At the outset, lawyer Mathews J Nedumpara raised the issues of bias and conflict of interest in Justice Khehar heading the bench, saying he has been part of the collegium.

Senior advocate Fali S Nariman, who was appearing on behalf of the Supreme Court Advocates on Record Association, suggested that the matter can be heard by the CJI along with the two senior-most judges and two other judges of the CJI's choice. Nariman added that was withdrawing his objection.

The bench then sought Attorney General Mukul Rohatgi's opinion on the issue. Rohatgi said 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 the same issues in administrative as well as the judicial side,' Rohatgi said.

Senior advocate K K Venugopal also 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.

The bench, which gave a patient hearing to several advocates including senior counsel K Parasaran, Rajeev Dhawan and others who were appearing for one of the other parties, said, '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 apex court on April 16 had constituted a new bench to examine the validity of the law replacing the collegium system of appointment of judges, after Justice Dave recused himself from the Constitution bench hearing the case.

Justice Dave, who was heading the five-judge Constitution bench, had recused from the matter on April 15 after the Supreme Court Advocates on Record Association 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.

However, Nariman's submission, on behalf of the Supreme Court Advocates on Record Association, was opposed by Attorney General Rohatgi and the Supreme Court Bar Association, which supported the entre in its endeavour to replace the over two-decade-old collegium system of appointment of judges by judges.

Rohatgi contended that the the Supreme Court Advocates on Record Association's suggestion was regrettable and condemnable. He was supported by the Supreme Court Bar Association president who said that the the Supreme Court Advocates on Record Association's objection was preposterous.

Their submission came after Nariman said that the provisions of the Constitution (the 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.

A three-judge bench of the apex court had on April 7 referred to a five-judge Constitution bench a batch of petitions challenging the validity of the NJAC Act to replace the collegium system of appointing judges to higher judiciary.

The court had refused to stay the implementation of the law with the observation that all issues arising out of the petitions would be decided by the Constitution bench.

The government had on April 13 notified the NJAC Act along with a Constitutional Amendment Act (the 99th Amendment Act) to grant Constitutional status to the new body to appoint judges.

The NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014.

Under the collegium system, which came into existence in 1993 after a Supreme Court judgment, five top judges of the apex court recommend the transfer and elevation of judges to Supreme Court and 24 high courts.

According to the new Article 124(A) of the Constitution, two eminent persons will be nominated to the National Judicial Appointments Commission as members by the committee consisting of the prime minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha or where there is no such person, then the leader of the single largest Opposition party.

One eminent person will be nominated from among persons belonging to the scheduled castes, scheduled tribes, other backward classes, minorities or women. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination.

The National Judicial Appointments Commission will be headed by the Chief Justice of India. Two senior-most apex court judges, the two eminent persons and the law minister will be members of the high-level panel.

The secretary (justice) in the Union law ministry will be the convenor of the National Judicial Appointments Commission.

The Supreme Court Advocates on Record Association, the Bar Association of India and some lawyers have challenged the new system of appointment of judges while the Centre has received support from the Supreme Court Bar Association and eminent jurists like T R Andhyarujina in its effort to push out the collegium system of appointment of judges by the judges.