Justice Anil R Dave
(Image courtesy: sci.nic.in)

Just when the Constitution bench of the Supreme Court comprising of Justice Anil R Dave, Justice J. Chelameswar, Justice MB Lokur, Justice Kurian Joseph and Justice Adarsh Goel was about to begin with the hearing of the bunch of petitions challenging the constitutionality of the Constitution (Ninety –Ninth Amendment) Act, 2014 and National Judicial Appointments Commission Act, 2014, the presiding judge – Justice Dave recused himself from hearing the matter.

When the hearing began in Court 3 of the Supreme Court of India, Senior Advocate Fali S Nariman, appearing for the ‘Supreme Court Advocate on Record Association’ submitted before the bench that he has no issue with Justice Dave presiding the hearing but said that Justice Dave should give a declaration that he will not be part of the NJAC deliberations and meetings till the hearing is over. [Bar and Bench]

Nariman submitted that after the above two acts were notified, Justice Dave had become a member of the NJAC and hence there was a clear ‘conflict of two conflicting duties’. Nariman also submitted that it was improper for the Union Government to notify the Acts as the matter had already been referred to a Constitution Bench.

However Attorney General Mukul Rohatgi objected to such a submission and argued that the Government is answerable to the Parliament of India and once the parliament had passed a law there was a duty to notify it. Attorney General said :

This contention coming from an Association of Advocates is condemnable. We notified the Act because the Government is answerable to the Parliament. The Presidential assent was received on December 31. We waited for a long time for the petitions to be decided.” [Bar and Bench]

The Conflict:

The Constitution (Ninety –Ninth Amendment) Act, 2014 inserts a new Article in the Constitution of India:

124A. National Judicial Appointments Commission Act

1. There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:
a. the Chief Justice of India, Chairperson, ex officio;
b. two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;
c. the Union Minister in charge of Law and Justice––Member, ex officio;
d. two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.
2. No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

Both the Acts were notified on 13 April 2015. The Chief Justice of India who is the ex-officio chairman of the NJAC along with two senior most judges of the Supreme Court of India next to the CJI therefore come within the conflict as suggested above.

Justice T.S. Thakur and Justice Anil R. Dave are the two senior most judges next to the CJI HL Dattu.

After the recusal of Justice Dave, CJI Dattu may have to constitute a fresh five-judge constitutional bench to hear the matter.