Justice JS Kehar
(Image from sci.nic.in)

The five-member constitution bench has unanimously opined that there are no reason in law which require Justice Jagdish Singh Kehar to recuse from hearing the challenge to constitutional validity of the Constitution (Ninety –Ninth Amendment) Act, 2014 and National Judicial Appointments Commission Act, 2014. The bench, which along with Justice Kehar as the presiding judge includes Justices J. Chelameswar, MB Lokur, Kurian Joseph and Adarsh Goel, passed an order on 22 April 2015 holding:

A preliminary objection, whether Justice Jagdish Singh Khehar should preside over this Bench, by virtue of his being the fourth senior most Judge of this Court, also happens to be a member of the collegium, was raised by the petitioners.

Elaborate submissions were made by the learned counsel for the petitioners and the respondents. After hearing all the learned counsel, we are of the unanimous opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar to recuse himself from hearing the matter. Reasons will follow.

The suggested ‘conflict’

On 15 April 2015 – the first day of hearing, Senior Advocate Fali S Nariman raised a conflict with Justice Anil R Dave being on the constitution bench hearing the matter, as Justice Dave became a member of the NJAC notified on 13 April 2015; subsequently Justice Dave recused from the bench. The Constitution Bench was then reconstituted and Justice Kehar replaced Justice Dave. Justice Kehar is a member of the present collegium of judges responsible for making recommendations for judicial appointments. Justice Kehar is currently also the fourth senior-most judge of the Court. As per the NJAC Act, CJI and two senior judges of the Supreme Court next to CJI, are a part of the NJAC. CJI HL Dattu, and Justices TS Thakur and AR Dave are hence the present members of this six member commission. As CJI Dattu retires on 2 December 2015, Justice Kehar would become a part of the NJAC.

When the hearing began on 21 April, Senior Advocate Nariman pointed out that Justice Kehar was a part of the collegium. Justice Kehar replied that he was hearing the matter as the CJI had constituted the bench with him on it after Justice Dave recused. He further said that when CJI had appointed him to this bench, he had written to the CJI that he would not participate in the collegium or NJAC proceedings till the case was decided.

Senior Advocate KK Venugopal who is representing the State of Madhya Pradesh in the matter told Court that it was unfortunate to ask Justice Dave to recuse from bench and suggested that he should be asked back to hear the case. Senior Advocate Harish Salve submitted that ‘the whole approach was wrong and that the Court had become over-sensitive’. He later tweeted “For the first time Supreme Court will hear a structured argument on what constitutes bias [that] disables a judge from hearing a case.”

At the end, bench observed that it will decide on the issue the next day.




download-orderThe Constitution Bench passed an order holding that there was no conflict in Justice Kehar hearing the petitions challenging NAJC. However the reasons behind this order would be released later.

The court issued notices to the Centre, all state governments and union territories asking them to be ready with the matter which “purely involves the questions of law”.

Other important points in the order:

  • Writ Petition(C) No. 13 of 2015 – Supreme Court Advocates-on-Record Association v. Union of India would be treated as the lead case among the petitions.
  • Secretary General of the Supreme Court shall issue notice in the above noted lead case, returnable on 23.04.2015, on all Standing Counsel in this Court, representing all the States.
  • The Secretary General shall also upload, the paper book of Writ Petition(C) No. 13 of 2015, on the Supreme Court Website, so that it can be downloaded and accessed by the counsel representing the different States, and by others impleaded therein. Read the Petition here.