NJAC hearing: Supreme Court to first decide on conflict of interest

Supreme Court to decide on the likelihood of bias if a future Chief Justice is hearing case


Last week, on objections from one of the petitioners, the then presiding judge of the bench, justice Anil R. Dave, had recused himself from the case. Dave is part of the NJAC, which was notified by the government on 13 April. Photo: Mint
Last week, on objections from one of the petitioners, the then presiding judge of the bench, justice Anil R. Dave, had recused himself from the case. Dave is part of the NJAC, which was notified by the government on 13 April. Photo: Mint

New Delhi: There might be a conflict of interest among some judges hearing cases relating to judicial appointments, a constitution bench of the Supreme Court was told on Tuesday.

Several cases that challenge two laws—the National Judicial Appointments Commission (NJAC) Act of 2014 and the constitutional amendment that grants the commission a constitutional status—have held the apex court’s attention for some time now.

The five-judge bench will now decide whether there is any conflict of interest in hearing these cases.

On Tuesday, the bench, now headed by justice J.S. Khehar, did not delve into the validity of the NJAC Act. Refraining from passing orders at this stage, the court said it would first decide whether there is a conflict of interest and a likelihood of bias when a future Chief Justice of India is hearing the case. Khehar is second in line after justice T.S. Thakur for the top post.

“Let’s get started. It’s a vital issue,” said Khehar. The next hearing is on 22 April. Besides Khehar, the other judges are J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel.

Lawyer Fali S. Nariman, representing the Supreme Court Advocates-On-Record Association, said “someone who is not in the reckoning” to become the chief justice should decide, and there were “enough judges” to take on this role.

Last week, on objections from one of the petitioners, the then presiding judge of the bench, Anil R. Dave, had recused himself from the case. Dave is part of NJAC, which was notified by the government on 13 April.

“According to me, every judge is competent (to hear these cases)," attorney general Mukul Rohatgi said in court. Lawyers K.K. Venugopal, Harish Salve and K. Parasaran, representing Madhya Pradesh, Gujarat and Rajasthan, respectively, also sought to put forth their views.

Salve said the “whole approach (of judges recusing) has grave conceptual problems” and asked the court to “lay down parameters” to that extent.

“I think the Sahara judgement decides on the issue. Both justice Radhakrishnan and Khehar had said that it was the duty of judges to decide. Trying to get the bench reconstituted like this cannot be permissible. This way, everybody can be conflicted. Somebody has to decide,” said lawyer Rahul Singh, who also teaches at the National Law School of India University in Bengaluru. “The concept of conflict of interest arises when there is a personal interest involved, like if you own shares in a company whose dispute you’re adjudicating. If it’s justice Khehar hearing this, I anticipate he’ll rely on Sahara to lay down principles of recusal.”

On 7 April, a three-judge bench of the Supreme Court had referred these petitions to a larger bench of five as it raised “substantial questions of law related to the interpretation of the constitution”.

The constitutional amendment and the law, passed by Parliament in August last year and signed by President Pranab Mukherjee in December, has led to the creation of a six-member commission to appoint judges of the higher judiciary—the apex court and the high courts.

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