The judgement in the NJAC case cannot be used as "a ruse to interdict" the assumption of office by Chief Justice of India J S Khehar, the Supreme Court has said while dismissing a plea challenging his appointment.
A bench of Justices R K Agrawal and D Y Chandrachud gave a reasoned judgement while dismissing the plea filed by a lawyers' body on December 30.
The National Lawyers' Campaign for Judicial Transparency and Reforms had challenged Justice Khehar's appointment contending that since he had presided over the five-judge Constitution Bench which revived the collegium after striking down the National Judicial Appointments Commission (NJAC) in October 2015, he was a beneficiary of his own verdict.
In the detailed judgement uploaded recently, the apex court said the petition seeking to challenge the appointment of Justice Khehar as the next Chief Justice of India (CJI) has no constitutional foundation or basis.
"If the petitioners have any reservations about the judgment in the NJAC case, this is clearly not the forum to espouse that grievance. Nor can this be utilised as a ruse to interdict the assumption of office by the CJI ....
"The judgment in the NJAC case binds this Bench. We do not find it appropriate or proper to entertain a petition under Article 32 of the Constitution questioning its legitimacy by seeking a declaration that it is void," the bench said.
Justice Khehar took oath as CJI on January 4.
Justice Agrawal, who headed the bench, said all citizens have full confidence and faith in the judiciary which has made a mark in doing justice to all, as for it, there is nobody above the law and all are equal.
With regard to the eligibility of Justice Khehar which was challenged by the lawyer's body on the ground that the judgment in the NJAC case was delivered by him and therefore he had usurped to himself the power of appointment of the Judges, Justice Agrawal said the judgement was delivered individually by all five judges and decided by four judges.
The constitution bench headed by Justice Khehar had held that the Constitutional (99th Amendment) Act, 2014 and the NJAC Act, 2014 were unconstitutional.
"So far as the allegation that he (Justice Khehar) has has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other senior judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself," it said.
The apex court noted that "the petitioners have
themselves unequivocally praised the qualities" of Justice Khehar in their petition.
"The petitioners have themselves admitted the qualities of Justice J S Khehar in paragraph 6, 20 and Ground No. C of the petition, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India," the bench said.
The apex court further said the petitioners have the remedy to file a review and curative petition as far as the correctness of the decision in the NJAC case is concerned.
Justice Chandrachud, who concurred with Justice Agrawal but gave separate reasoning, said the plea that Justice Khehar is disqualified for being appointed as Chief Justice of India is thoroughly misconceived.
"Justice Khehar was duly appointed by the President of India as a Judge of the Supreme Court under Article 124(2) on 13 September 2011. Being the senior most Judge of the Supreme Court of India, his appointment as Chief Justice of India follows a recognised constitutional convention (duly acknowledged and reiterated in the Memorandum of Procedure) of the senior most judge of the Supreme Court being appointed to the office of Chief Justice of India.
"It is preposterous to urge that the senior most puisne Judge of the Supreme Court is disqualified for appointment as Chief Justice of India on the basis of a perception formed by a litigant of a judgment delivered by the Judge.
"The issue as to whether Justice Khehar should recuse himself from participating in the hearing of the NJAC case was considered and the plea for recusal was specifically negatived," Justice Chandrachud said.
"We do not find any merit in the petition and the same is dismissed," the bench had said on December 30, while rejecting the plea filed by National Lawyers' Campaign for Judicial Transparency and Reforms.
On December 23, the apex court had termed as "virtually infructuous" the petition filed by the lawyers' body opposing elevation of Justice Khehar as the next CJI observing that the President has already issued a notification in this regard.
The bench had noted in its order that the notification appointing Justice Khehar as the next CJI has been issued on December 19.
On December 19, President Pranab Mukherjee had cleared the name of Justice Khehar as the next CJI. His predecessor, Justice T S Thakur, demitted office on January 3.
