Chief Justice of India H.L. Dattu has told Prime Minister Narendra Modi that he would not take part in the NJAC till the court's constitution bench is hearing the challenge to the validity of the NJAC Act and the supporting constitutional amendment act, the apex court was told on Monday.
Informing the constitution bench of Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel of this at the outset of the first day of the hearing of challenge to the National Judicial Appointments Commission (NJAC) Act, 2014, and 99th constitutional amendment, Attorney General Mukul Rohatgi showed them the letter written by the CJI to Prime Minister Modi on Saturday in this connection.
Describing the situation as a kind of constitutional stalemate, he told the court that without the participation of the CJI, the selection of imminent people to be nominated on the NJAC by a troika of three member committee comprising the prime minister, the leader of opposition and CJI would not take place.
Rohatgi urged the court to issue direction to the chief justice and other two senior-most judges of the apex court immediately after him to participate in the NJAC.
The court adjourned its hearing for a while to consider the plea but when they came back, they said that this matter would be considered on May 12 when it would consider the fate of additional judges of the high courts whose tenure would be coming to an end during the course of the hearing of the challenge to the two acts.
The daylong hearing, which is likely to last for 14 working days before court goes into an one and half month summer recess, saw senior counsel Fali Nariman arguing that a preponderance of judicial members in any forum for selection of apex court and high court judges was essential for the independence of judiciary which in turn was the basic structure of the constitution.
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"The primacy of the judiciary - represented by CJI and the chief justice of high court as the collective of the judiciary - is integral to the independence of judiciary. If independence of judiciary is preserved, the basic structure of the constitution is preserved," said Nariman, appearing for the Supreme Court Advocate on Record Association (SCAORA).
Contending that the collective personality of the court resided in the chief justice, he said that the power to amend the constitution under article 368 was not an unlimited power to amend the constitution and cited several judgments of the apex court to back his submission.
Nariman also told the court that on August 13 and 14, 2014 when parliament passed the NJAC Act, 2014, it had no such power to do so as there was no constitution provision backing it then. He said that the constitutional amendment sustaining the NJAC Act, 2014 was given president's assent on December 31, 2014 and became operational only after it was notified on April 13, 2015.
He urged the court that before examining the constitutional validity of the two acts, it may dwell on whether in the interregnum period when the constitutional amendment was passed but had not become the part of the constitution, could the parliament enact a law to put in place the NJAC.
The court said that it would hear all the arguments focusing on different aspects of the challenges and decide the matter as a whole including the question raised by Nariman.