Supreme Court to decide which 5 judges can hear validity of NJAC Act

New Delhi: The issue of conflict of interest and doctrine of bias once again cropped up on Tuesday before a constitution bench of the Supreme Court set up to hear the constitutional validity of the law replacing the appointment of judges by the collegium system.

After some of the parties in the matter raised the issue of heading the five-judge bench headed by Justice JS Khehar, it decided that before going into merits of the impugned law it will settle the issue as to which judges of the Supreme Court can hear it.

Justice Khehar said he had "no desire" to hear this matter. He was hearing it because of the fact that Chief Justice of India (CJI) had constituted the bench with him as part of it after Justice AR Dave had recused himself, he

said.

He said the moment his name was decided to head the bench, he wrote to the CJI that he will not be a part of either the National Judicial Appointments Commission (NJAC) or the collegium till the matter is finally heard and decided.

"We should decide who will hear the matter," the bench also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel said, while posting the matter for hearing on Wednesday.

"It is a very vital issue and we cannot keep it pending. We intend to pass an order as to who will hear the matter," the bench said.

At the outset, one of the lawyers, Mathews J Nedumpara raised the issues of bias and conflict of interest in Justice Khehar heading the bench, saying that he has been part of the collegium.

Senior advocate Fali S Nariman, who was appearing on behalf of Supreme Court Advocates on Record Association (SCAORA), suggested that the matter can be heard by the CJI along with two senior-most judges and two other judges of

CJI's choice. He also said that he is withdrawing his objection.

The bench then sought the opinion of Attorney General (AG) Mukul Rohatgi on the issue.

Rohatgi said that the ideal situation would have been to bring Justice Dave back on the bench as there was no conflict of interest. "Most of the times judges decide same issues in administrative as well as in judicial side," Rohatgi said.

Senior advocate KK Venugopal also submitted that it was very unfair to ask Justice Dave to recuse from hearing the petitions challenging the NJAC Act.

Senior advocate Harish Salve also opposed the recent practice that judges are often asked to recuse from a particular matter and agreed with other lawyers that there was a need to lay down principles and parameters on recusal on the grounds of conflict of interest and bias.

The bench which gave patient hearing to several advocates including senior counsel K Parasaran, Rajeev Dhawan and others who were appearing for one of the other parties, said, "The issue (of NJAC) is very important and needs to be settled. But if we get into all these issues, everything will be delayed."

The apex court on April 16 had constituted a new bench to examine validity of the law replacing the collegium system of appointment of judges, after Justice Dave had recused himself from the Constitution bench hearing the case.

Justice Dave, who was heading five-judge Constitution bench, had recused from the matter on April 15 after SCAORA and other petitioners said that since he had become a member of the NJAC under the new law, it would not be proper for him to hear the matter.