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Justice Khehar stays: 5 judges to hear NJAC challenges on 27 April

The Supreme Court will from April 27 start hearing a batch of petitions challenging the constitutional validity of the NJAC Act, 2014, and the constitution amendment backing it.

The court on Wednesday rejected the plea that Justice JS Khehar should withdraw from hearing the matter as he is a member of the collegium.

The five-judge Constitution Bench comprising Justice Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice AK Goel said the hearing challenging the National Judicial Appointments Commission (NJAC) will commence from Monday and continue for 14 working days.

The apex court functions from Monday to Friday and it is left with just 14 days as May 15 is the last working day before the court goes into summer recess on May 18, 2015.

The court said the government and those supporting NJAC would get five days and those who have petitioned against it too would get five days to argue. Four days would be kept in reserve.

However, the bench will meet on Thursday post lunch to decide on the future of ad hoc and additional judges in various high courts across the country whose tenure would be coming to an end during the course of the hearing, and till the apex court pronounces its judgment.

Attorney General Mukul Rohatgi will apprise the apex court on the government’s position on the issue when it hears the matter on Thursday.

While issuing notice to all the states, the court said it would treat a petition by Supreme Court Advocate on Record Association (SCAORA) as the lead petition.

The court registry would put it on the court’s website for all the respondents and others to download.

The notice to the states is returnable by Thursday.

The day-long hearing, which was expected to witness arguments on contentious issues, turned out to be an anti-climax as counsel Fali Nariman, appearing for the SCAORA, withdrew his plea that Justice Khehar should withdraw from presiding over the bench, after it was clarified by the bench that Justice Khehar would not participate in the proceedings of the collegium till the challenge to the NJAC was heard and decided.

Counsel Arvind Datar, appearing for Chennai-based Service Bar Association, Attorney General Rohatgi and amicus curiae Harish Salve and KK Venugopal urged the court that Justice Khehar should not withdraw from presiding over the bench and hearing the matter.

Though both Salve and Venugopal are appearing for the Haryana and Madhya Pradesh governments, the court treated them as amicus curiae for Wednesday’s hearing.

Datar, while contending that there was no ground for Justice Khehar to withdraw from presiding over the bench as there was no conflict of interest, contested Attorney General Rohatgi’s contention that with the notification of the NJAC Act and the Constitution Amendment Act, 2014, the collegium system has ceased to exist.

He said there were a large number of vacancies and more posts will fall vacant in future that need to be filled up before the matter is decided by the court.

He urged the court to address this issue as it may take time for the NJAC to become operational.

Opposing the plea by advocate Mathew J Nedumparaa for Justice Khehar to recuse, Attorney General Rohatgi told the court that in the discharge of multiple constitutional responsibilities, there was no conflict of interest.

Urging Justice Khehar to continue to preside over the bench, Attorney General Rohatgi said that it would otherwise lead to a pernicious situation where one judge after another would be asked to recuse on the grounds of conflict of interest.

Assailing the attack on the NJAC, Salve said the problem was rooted in the understanding that the collegium system of appointment of judges was a power and not a duty which was now getting transferred to the NJAC

He told the court that the collegium system was not a power that is being taken away but a duty to appoint and transfer judges.

The issue was not of the collegium system versus the NJAC but that of the constitutional validity of the NJAC and whether it satisfies the requirement of the basic structure of the Constitution and upheld the independence of the judiciary.

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