Declining requests for an interim stay of the National Judicial Appointments Commission law, a five-judge Bench of the Supreme Court on Wednesday directed focus on deciding the constitutionality of the new judicial appointments law, an issue affecting hundreds of judicial appointments to the highest courts across the country, without delay.
Agreeing by general consensus that Justice J.S. Khehar should not recuse as their lead judge, the Bench declined to entertain worries expressed in court about how the present vacuum affects fresh judicial appointments to the courts.
Instead, the Bench expressed its intention to start hearing the batch of petitions challenging the NJAC law from April 27 and finish before the court closes for vacation.
Meanwhile the Bench decided to assemble on April 23 at 2 p.m. to consider setting up an interim mechanism to decide on the confirmation of additional High Court judges.
Justice Khehar explained that “these additional judges cannot be asked to go home” because of the vacuum due to the present challenge to the NJAC law.
“You can give us a solution. These are immediate issues to be settled. We are already very short of judges,” Justice Khehar said.
The "unanimous opinion" of the Bench that Justice Khehar will not recuse was conveyed in a short order dictated by Justice J. Chelameswar, the seniormost puisne judge on the Bench, also comprising Justices Madan B. Lokur, Kurian Joseph and A.K. Goel.
After Justice Chelameswar dictated his order, Justice Khehar again took over for the Bench to issue notices to all the States to respond on the challenge to the constitutionality of the NJAC law.
The Constitution Amendment incorporating NJAC into the Constitution was ratified by more than 15 States before receiving the President’s assent in December 2014. Both the amendment and the NJAC Act were notified on April 13 by the government.
Responding to worries raised that putting NJAC on hold would leave a vacuum in judicial appointments, Justice Khehar said fresh appointments to the judiciary can wait a “week or two” till the challenge to the NJAC law is decided.
The orders were passed at the end of a day-long hearing on whether Justice Khehar, as member of the Supreme Court Collegium, would attract conflict of interest if he hears a batch of petitions on the constitutionality of the NJAC Act, which replaces the Collegium as the body of judicial appointments.
On Tuesday, petitioners had objected to Justice Khehar's presence on the five-judge Constitution Bench set up to decide the validity of the new law.
They had alleged there was a "pre-disposition of prejudice" against Justice Khehar, who would lose his position as a Collegium judge with the coming of the NJAC. They argued that a reasonable, well-informed member of the public would think that Justice Khehar may favour retaining the Collegium and all the power it wields.
Dismissing these contentions from the petitioners, Mr. Rohatgi said a duty of Supreme Court judges to be members of the NJAC is a constitutional obligation along with their duties on the judicial side.
“There is no conflict of interest. I calculated, if the petitioners’ logic is to be followed 19 of the 28 judges in the Supreme Court cannot hear these petitions,” Mr. Rohatgi said.
Arguing for the States of Haryana and Madhya Pradesh, senior advocates Harish Salve and K.K. Venugopal, respectively, argued that asking Justice Khehar to recuse, like Justice Anil R. Dave before him, spelt “gross injustice”.
Another petitioner, advocate M.L. Sharma, said the case cannot hop from one bench to another in search of a suitable judge.
