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The presiding judge hearing the challenge to the National Judicial appointments Act withdrew from the five-judge bench today when senior counsel for the petitioners, F S Nariman, pointed out that Justice Anil Dave cannot decide the case as he would be a member of the commission selecting judges of the Supreme Court and the high courts.
In view of the conflict of interest, Justice Dave directed that the writ petitions may be placed before the Chief Justice to constitute a bench in which he is not a member.
When the bench assembled today, Nariman handed over a short note to the judges in which he pointed out that Justice Dave would be an ex officio member of the selection panel as he is a senior judge. When the establishment of the panel and its membership are constitutionally challenged, he should not participate in the adjudication of the issue, Nariman said. Otherwise, he has to give up the membership of the selection panel, he added. The judge has the alternative of recusing from the hearing.
Counsel also criticised the notification issued on Monday bringing into force the Act, when the constitutionality of the law is yet to be decided. “It may not be illegal, but it was improper,” Nariman said. It was an act to overreach the court he said.
Attorney General Mukul Rohatgi said the present bench should continue and the objection to it was “amazing and condemnable.” It implies that the judges are not independent. Judges decide law irrespective of all other considerations, he said. Moreover, the government has to implement the law passed by Parliament and it is answerable to the public. Already 25 states have ratified the law. If benches are going to be reconstituted, now five and then seven or more, the government would not be able to implement the law, he said. The Supreme Court Bar Association supported him. However, several lawyers’ organizations have moved the writ petitions, which would now go before a new bench.
