NJAC verdict: Why Justice Khehar did not recuse

“If I had recused as presiding judge it would have set a wrong precedent”.

Justice J.S. Khehar.

Among the pages of the voluminous judgment striking down the National Judicial Appointments Commission (NJAC) is a short narrative of Justice J.S. Khehar’s inner struggle when asked to recuse as the presiding judge of the Constitution Bench.

This narrative, in a 16-page order, is fashioned as a message to the judiciary, drawn from his personal experience in the NJAC case, that the choice to step down from a case is that of a judge and no litigant should “scare a judge out of a case.”

In this, Justice Khehar talks of his “awkward predicament” in court when senior advocate Fali Nariman, who represented the Supreme Court Advocates-on-Record Association challenging the NJAC law, pressed for his recusal from the Bench for conflict of interest.

Justice Khehar reproduces Mr. Nariman’s note, which said that “the impression in people’s mind would be that it is inappropriate if not unfair if a sitting member of a Collegium sits in judgment over a scheme that seeks to replace it.” The judge records that another lawyer, advocate Mathews Nedumpara, too asked him to recuse.

His predecessor on the five-judge Bench, Justice Anil R. Dave, had only done so himself a few days back on April 15, 2015. Mr. Nariman had written to him, asking him not to participate in the NJAC — which became a law on April 13 — if he intends to continue on the Bench. With the NJAC law passed, Justice Dave had automatically become a member of the Commission, and an “interested party.” In response, Justice Dave had decided to recuse.

Justice Khehar said how he could have agreed with Mr. Nariman and recused. He wrote of how he held Mr. Nariman in high esteem and would have recused without a second thought.

“But then I would be initiating a wrong practice, and laying down a wrong precedent.” He said, like every judge, he took his oath to discharge his duties without fear or favour, and it would be breach of his oath of office, if he accepted a prayer for recusal, unless justified.

“It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office, to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this court,” he wrote.