The NJAC Challenge: Judge Recused Himself!

Published on Wed, Apr 15,2015 | 22:42, Updated at Wed, Apr 15 at 22:44Source : Moneycontrol.com 

By: Ashmit Kumar, CNBC TV18

Can a senior Supreme Court judge, who by law is a member of the National Judicial Appointment Commission, also head a specially constituted 5-judge constitutional bench to hear Public Interest Litigations (PILs) against the NJAC Act?  

Today was the first hearing of the PILs, after the Government notified the 99th Constitutional Amendment (providing for an NJAC) and the NJAC Act. The hearing opened with fireworks, courtesy senior counsel Fali Nariman. The NJAC Act envisions a commission that has representation from the judiciary by way of the Chief Justice of India and two senior most SC Judges. So besides the Chief Justice of India – Justice HL Dattu, the two judges expected to feature in the commission are Justice Thakur and Justice Dave.

In a thinly veiled attempt to raise the issue of a potential conflict of interest, Senior Counsel Fali Nariman argued that it was only appropriate for Justice Dave to choose one of the two responsibilities. Justice Kurien, a member of the 5 judge bench hearing the PILs, was quick to respond to Nariman's charge by reasoning that Justice Dave could not "choose" to be a part of a constitutional commission and could only decide on recusing himself from the hearing.  

The government, represented by the Attorney General Mukul Rohatgi, and the Supreme Court Bar Association, represented by SCBA President Dushyant A. Dave, were also quick to jump to the bench's aid. They labeled Nariman's contention as "regrettable" and "condemnable"  

Meanwhile, the Government also sought the outright dismissal of the plea. The Government reasoned that petitions could be deemed as infructous, with the move to notify the Act and the Constitutional Amendment.  

The fireworks from across the bar, have concluded with the Justice AR Dave now deciding to recuse himself from hearing the PILs. Action, now, is only likely to resume, once the bench is reconstituted with a suitable replacement for Justice Dave.  

An account of the earlier hearing can be read here.

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