With petitioners gently conveying to him that he recuse from the Constitution Bench set up to decide the constitutionality of the National Judicial Appointments Commission, Justice J.S. Khehar decided on Tuesday that the Bench would determine once and for all the question whether members of the NJAC could hear a challenge to the validity of the new judicial appointments law without giving an impression of conflict of interest or bias.
The NJAC challenge has been a non-starter, with petitioners, the second time in a row, objecting to the choice of the lead judge on the Constitution Bench. Instead of bowing out, Justice Khehar, leading the Bench, stood his ground. He said the case could not hop from one Bench to the other, and it was imperative to decide immediately on who should hear the case.
Last week, Justice Anil R. Dave, the lead judge, recused himself from the Bench. The petitioners, one of them represented by counsel Fali Nariman, had protested that as the third senior-most judge in the Supreme Court, Justice Dave was a member of the NJAC by the law. This unwittingly put him in the position of a judge sitting in his own cause.
After Justice Dave’s recusal, the Bench was reconstituted under Justice Khehar. And on the first hearing by the new Bench on Tuesday, he was responding to submissions that as the fourth senior- most judge, he too was, in all likelihood, set to be a member of the NJAC when Chief Justice of India H.L. Dattu retires in December. This puts him in a position of conflict of interest, it was alleged. Besides, Justice Khehar is in line for the post of Chief Justice.
“So, say there is a case on the land acquisition law before this court. By your logic, no judge who owns land can hear it,” Justice Khehar responded to submissions hinting at his recusal.
Justice Khehar said the real process of deciding on the merits of the NJAC was getting delayed.
“If you go on like this you can’t decide anything this way,” Justice Khehar told the petitioners. He had no “personal interest or desire” to hear the NJAC challenge. In fact, he had written to Chief Justice Dattu that he would not participate in the collegium until these petitions were decided.
“I will rather be happy enjoying my vacation doing something else,” he observed.
‘Justice Dave’s recusal has opened a Pandora’s box’
Noting counsel Dushyant Dave’s submission that events which led to Justice Anil R. Dave’s recusal from the Constitution Bench set up to decide the constitutionality of the National Judicial Appointments Commission has opened a Pandora’s box, Justice J.S. Khehar said on Tuesday that the issue of conflict of interest and judicial bias in this case had to be settled now.
“Or else, somebody, 20 years from now, will look at this case and say what the hell was this judge doing on this Bench,” Justice Khehar said scheduling the next hearing for April 22.
Fali Nariman, representing a petitioner, submitted, without pressing for recusal, that judicial bias could render a judgment void. The senior lawyer said Justice Khehar should “ponder” before he decided on the future course.
Counsel Harish Salve seconded the Bench’s take on the development, submitting that there had been far too many recusals.
“This court has become oversensitive, and we have people taking undue advantage of this. The system is taking undue advantage of this. Today, if a ruling does not go in favour of somebody, he will start taking pot shots at the judge. It is time this court laid down the rule [on recusals],” Mr. Salve said.