In a new twist, Chief Justice of India HL Dattu has refused to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC) on whose validity a constitution bench began hearings on Monday.
The five-judge constitution bench, headed by Justice JS Khehar, which is hearing the issue of constitutional validity of the new law on appointment of judges to higher judiciary, was told by Attorney General Mukul Rohatgi that Dattu has written to Prime Minister Narendra Modi that he would not participate in the meeting of the panel till the matter is decided by the apex court.
The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six-member NJAC for appointment of judges to higher judiciary.
When it was brought to the notice of the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, it heard the views of various senior advocates on how to proceed with the matter taking into account that in the immediate future there would be the eventuality of appointment of existing additional judges of the high courts whose tenures are coming to an end.
After taking note of their views, the judges retired to their chambers and assembled after 15 minutes.
Justice Khehar said that the bench has decided to continue with the hearing on the merits of the case and if needed it will pass an interim order.
"A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order," the bench said.
The AG submitted that it is mandatory for the CJI to be the part of the panel in selection and appointment of eminent persons in the six-member commission.
He said a direction should be passed for the CJI to participate in the meeting.
However, his view was not shared by senior advocate Fali S Nariman, who is appearing for Supreme Court Advocates on Record Association (SCAORA), said that if the CJI is not participating, the bench can direct others to meet and participate.
The apex court also sought the view of senior advocate Ram Jethmalani, who said, that the bench has to see if prima facie, a case for staying the operation of NJAC Act is made out or not.
However, senior advocate Harish Salve, appearing for Haryana government and supporting the new law, submitted that the bench can continue with the hearing as the question of additional judges of high courts will arise only on May 20 and in the meantime if the hearing goes on the judges will get the grasp of what is going to be the prima facie view.
Salve further said that the bench has to, on one hand, consider the sensitivity of the head of the judicial family that is the CJI, and the will of the Parliament which led to the constitution of the NJAC, on the other.
He also said let the matter be heard for seven-eight days and then a view can be taken on the entire issue.
"Today we are at the very initial stage," Salve said, adding that staying the amendment at this stage will not be the right thing to do.
On April 23, the apex court had said that NJAC will only deal with appointment of existing additional judges of high courts, whose tenures are ending during pendency of the controversy, after it was assured by the AG that commission will not appoint judges to the higher judiciary and will move the court in such an eventuality.
Earlier, the bench had asked Rohatgi to take instruction from competent authority about the additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court.
The AG had said that barring four-five cases, all recommendations of erstwhile collegium have been accepted.
On the issue of re-appointment or extension of additional HC judges, Rohatgi had said that tenures of two or three judges of Assam High Court, seven to eight in the Bombay High Court are ending in June and hence, the issue be "kept open" till May 11 as the NJAC is likely to be constituted by May 4.
The process to appoint two eminent persons in the six-member NJAC "will commence shortly" and the panel is "likely to commence working on May 4", he had said.
The bench had said that the NJAC Act has to implemented as it has neither been stayed nor set aside.
Rohatgi had refuted the submission of Nariman that two eminent citizens, who would become part of the NJAC, will be embarrassed if the Act is set aside and said that they would be knowing that a litigation is pending.
Earlier, the court had cleared decks for hearing of batch pleas against the NJAC by rejecting the submission seeking recusal of presiding judge Justice Khehar on the ground of conflict of interest and bias.
The bench had then said that it will commence the hearing today to examine the validity of recently-notified NJAC Act, which replaces the two-decade-old collegium system of appointment of judges to the higher judiciary.
The court had also issued notices to the Centre, all states and union territories asking them to be ready with the matter which "purely involves questions of law".
A consensus was evolved that the petition filed by the SCAORA, in which Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014.
The Attorney General will be the lead counsel to defend the law which has got support from the Supreme Court Bar Association and states like Madhya Pradesh and Haryana for which senior counsel K K Venugopal and Salve appeared. The constitution bench could not commence hearing so far with issues of conflict of interest and doctrine of bias cropping up on two occasions.
Firstly, Justice AR Dave, the second senior-most judge, had recused himself from heading the bench on April 15 when Nariman and some other petitioners had submitted that it was not proper for him to preside the bench as there would be a conflict of interest since he will be the member of the NJAC and was also the member of the collegium.
Later, Chief Justice of India Dattu set up a new bench headed by Justice Khehar, who is the third senior most judge.
However, his presiding over the bench was also opposed on the same grounds of conflict of interest and bias but instead of going into the question of the validity of the new law, the five judges said it will settle the issue as to which judges can be a part of the Constitution bench.
The issues of conflict of interest and bias have been flagged because the NJAC will be headed by the CJI, two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel.