The Supreme Court today did not hear a batch of petitions challenging the National Judicial Appointment Commission replacing the collegium system for appointing judges as it will first decide whether Justice JS Khehar, who is presiding over a five-judge constitution bench, can hear the challenge.
The apex court bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice AK Goel decided to first hear the plea about the judges eligible to hear the petitions challenging the NJAC Act and the constitutional amendment backing it.
The issue before the court is what is the conflict of interest for the judges and to what extent it would apply to the hearing of the challenge to the NJAC Act, 2014, and the supporting constitutional amendment.
Justice Khehar, heading the bench, said the bench would endeavour to lay down the principle in this regard for the Chief Justice of India to constitute benches for future references.
The issue arose at the outset of the hearing as advocate Mathew J Nedumparaa told the bench that Justice Khehar, being part of the Supreme Court collegium, was not suited to hear the challenge to NJAC Act, 2014, and the constitutional amendment backing it.
Justice Khehar said he had no desire to be involved in the hearing of the challenge to the NJAC but Chief Justice HL Dattu gave him the task.
“As soon as I got it, I told Chief Justice that I don’t want to get involved in the appointment process,” Justice Kheher added.
Justice Chelameswar wondered where was the question of bias since the hearing would take place in the open court with media persons present and reporting. He said that whatever view is taken by the court, it would be backed by a reasoning.
Senior counsel Harish Salve appearing for Haryana urged the court to lay down the principle on issue of the conflict of interest when it comes to judges hearing the matter.
Along with Gujarat and Madhya Pradesh, Haryana has moved the court seeking to intervene in the hearing of the challenge to the constitutional amendment.
Similarly, Attorney General Mukul Rohatgi said that the bench can hear the matter - a position he had taken earlier when Supreme Court Advocate on Record Association (SCAORA) had objected to the Justice Anil R Dave hearing the matter.
Rohatgi said he had no objection to court hearing the matter to lay down the principle on the issue of conflict of interest on judges hearing the matter.
However, as an alternative suggestion, senior counsel Fali Nariman appearing for SCAORA - which had objected to Justice Dave hearing the matter - said that let the three senior most judges of the court, including the CJI, hear the challenge to the NJAC Act, 2014, and the constitution amendment.
Senior counsel Dushyant Dave appearing for the Supreme Court Bar Association opposed the suggestion by Nariman, saying that he had objected to the hearing of the matter by Justice Dave. Nariman contested Dave’s contention, saying “I did not object to Justice Dave hearing the matter”.
The court is inclined to complete the hearing on the issue of conflict of interest in one day, and asked both the sides to pick up three counsel each to argue on their behalf with others assisting them.
The matter will come up for hearing on Wednesday.