The five-judge Constitution Bench of the Supreme Court has, as of now, declined to decide the issue regarding referring the bunch of petitions challenging the constitutional validity of the Constitution (Ninety –Ninth Amendment) Act 2014 and National Judicial Appointments Commission Act, 2014 to a larger bench. The issue arose as the Attorney General of India – Mukul Rohatgi had submitted before the bench that the issue whether the previous judgment of the court in Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441 and Special Reference No. 1 of 1998 Re: (1998) 7 SCC 739 need reconsideration. Both the aforesaid judgments have been decided by nine-judge Constitution Bench and therefore if they need to be reconsidered, the matter has to be referred to a nine or 11- judge bench.
The court however made it clear that it was not ruling out the possibility of referring the matter to a larger bench after hearing the challenge to the NJAC on merits as well. [Business Standard]
The bench on 12 May 2015 passed the following order:
The prayer made by the learned Attorney General for India for disposing of the issue with reference to the need of re-visiting the two judgments rendered by this Court in Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441, and Special Reference No. 1 of 1998 Re: (1998) 7 SCC 739 to be decided first, as a preliminary issue, before hearing the main case on merits, is declined.
As the NJAC has not yet become functional, bench also ruled:
As an interim measure, we direct the appointment of Additional Judges in High Courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.
The Constitution Bench has adjourned the matter and shall hear it next on 8 June 2015 during which the summer vacations of the Supreme Court.
The Union Government and States had argued that the case must be heard by a larger bench since the aforesaid two judgements related to the judicial appointments had established collegium system and the same may require a reconsideration. It contended that a five-judge bench could not review these two nine-judge bench judgments.
SCAORA however had however opposed the move terming it as a tactic to delay the challenge to the validity of Constitutional Amendment and the NJAC Act.