Justice Dave recuses himself from NJAC Bench

Senior advocate Fali Nariman pointed out there is a clear conflict of interest as Justice Dave is also a member of the NJAC.

The Constitution Bench set up to decide the validity of the National Appointments Judicial Commission law could only have a short life on Wednesday with the lead judge Justice Anil R. Dave having to recuse himself following objections raised in open court about his conflict of interest.

Justice Dave, who heads the five-judge bench, is the third senior-most Supreme Court judge. He is also a member of the NJAC as per the statute which prescribes that the six-member Commission will have the CJI and the next two seniormost judges as its members.

Justice Dave was also a part of the now redudant Supreme Court Collegium, replaced by the NJAC following its notification on April 13.

The objection was voiced at the very outset of the hearing by senior advocate Fali Nariman, representing a petitioner challenging the NJAC.

"He (Justice Dave) is a member of the Commission, the constitutionality of which is under challenge before this bench. So there is a clear conflict of interest," Mr. Nariman addressed the bench.

After a short discussion among themselves, Justice Dave said he was recusing.

Attorney General Mukul Rohatgi however said that the challenge to the law should be dismissed outright as a notification declaring it as law has already been issued.

The government has already argued earlier that it is too premature to test the law and a “concrete case” illustrating the law's affect on the public would only materialise a couple of months after the law is implemented post notification.

The Attorney-General had dissuaded the judiciary from making “disembodied” decisions regarding matters of policy and laws yet to come into force on the ground.

He stated all this during the first round of arguments in the Supreme Court on the admissibility of the petitions.

In this preliminary hearing before a three-judge bench, Mr. Rohatgi had termed the Collegium system “completely illegal”. He described the NJAC as “change” which should be “first allowed to work”.

With Justice Dave recusing, the CJI will have to form a new bench for the case.