Judge recuses from hearing petition on NJAC’s validity

The NJAC has to be a six-member body, headed by the Chief Justice of India (CJI), that will also include the two senior-most Supreme Court judges, Union Minister of Law and Justice and two “eminent persons” nominated by another panel comprising the Prime Minister, CJI and Leader of Opposition in the Lok Sabha or leader of the largest opposition party in the Lower House.

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CJI H L Dattu will now require to reconstitute the bench for hearing to take place. When the bench was constituted by the CJI, the government had not notified the NJAC and hence the question of Justice Dave being its member did not arise.

As the hearing began, senior advocate Fali S Nariman, who represented lawyers body and petitioner Supreme Court Advocates-On-Record Association, pointed out that after the April 13 notification by the government, which brought into force the NJAC Act, Justice Dave had become a member of Commission whose validity has been challenged.

Nariman added that it would be appropriate if it was declared at the outset that Justice Dave would not be part of the NJAC deliberations and meetings till the matter in the court is decided.

While terming the government’s move to notify the law as “improper”, Nariman said: “He (Justice Dave) is a member of the Commission the constitutional validity of which is under challenge before the bench. This is clear conflict of interest.”

Opposing this argument, Attorney General Mukul Rohatgi dubbed Nariman’s contention as “wholly regrettable and condemnable”. He said judges took administrative decisions on a daily basis, which was no ground to raise the issue of conflict of interest. Rohatgi said no such objection was raised when the three-judge bench presided over by Justice Dave had earlier heard the matter and referred it to the Constitution bench.

The AG also defended the government’s decision to notify the provisions of the Constitution (99th amendment) Act and of the NJAC Act 2014. “We notified the Act since the government is answerable to Parliament. The Presidential assent was received long back on December 31 and we waited for long for these petitions to be decided. We did what we thought was right,” Rohatgi said.

Justice Dave, however, preferred to recuse from the case, referring the matter to the CJI for setting up another bench. Besides Dave, the bench comprised Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel.