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Chief justice of India H.L. Dattu is likely to constitute a new bench to hear the case. Photo: Mint
Chief justice of India H.L. Dattu is likely to constitute a new bench to hear the case. Photo: Mint

Supreme Court judge recuses himself from NJAC hearing

Justice Anil R. Dave recuses himself as he became part of the commission whose validity has been challenged

New Delhi: The presiding judge on a Supreme Court bench formed to hear a petition challenging the validity of the National Judicial Appointments Commission (NJAC) Act and a related constitutional amendment on Wednesday recused himself from hearing the case.

Justice Anil R. Dave withdrew from the hearing came after senior lawyer Fali S. Nariman, representing lawyers body and petitioner Supreme Court Advocates-on-record Association, raised an objection to his presence on the five-judge bench.

Nariman argued that after a notification by the government, which brought into force the NJAC Act, justice Dave became part of the commission whose validity has been challenged.

The government on 13 April notified the two laws, which ended the nearly 22-year-old practice of a smaller group—or collegium—of judges appointing other judges. This method was evolved through earlier rulings of the apex court.

NJAC, which will be composed of six members—the Chief Justice of India (CJI), the two senior-most judges of the Supreme Court, the law minister and two eminent persons—will replace the collegium system. Critics have called the move towards NJAC an attack on the independence of the judiciary.

Calling it a “conflict of two conflicting duties", Nariman asked Dave to not take part in the commission’s activities as he was also to decide on whether the commission was valid.

Attorney general Mukul Rohatgi called the objection raised by Nariman “unfounded", “regrettable" and “completely condemnable". He contended that justice Dave was to “decide in a dispassionate manner" the validity of the NJAC and requested that the hearing continue.

The five-judge constitution bench with justices Dave, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel was to hear the validity of the NJAC, a six-member panel to appoint judges of the higher judiciary, beginning on Wednesday.

Nariman also called the 13 April notification “improper", clarifying that it wasn’t illegal.

He said that since the validity of the two laws were under challenge before the court, the government ought not to have moved forward without intimating the court. Rohatgi said his argument was “without basis" and that the government was answerable to Parliament after it had passed a law.

Chief Justice of India H.L. Dattu is likely to constitute a new bench to hear the case.

The two bills—the Constitution (One Hundred and Twenty First Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014—were passed by Parliament in August last year.

The president signed them into law on 31 December after more than half the states ratified the constitutional amendment. Thereafter, several pleas challenging the two laws were brought before the Supreme Court.

“I don’t think it was a valid objection. Justice Dave was also a member of the collegium, when the case was argued before the three-judge bench," said senior lawyer Raju Ramachandran.

“In either situation, if the NJAC gets struck down, justice Dave remains a part of the collegium, and if it’s upheld, he’s part of the NJAC. He’s not someone who gains or loses in the process,"

“Besides this narrow perspective, there is a doctrine of necessity as far as the higher judiciary is concerned and judges can’t be recusing themselves merely because an objection is raised. After all, judges with their long years of experience and natural detachment would be above the narrow consideration of whether they’ve been on a body," Ramachandran added.

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