SC faces fresh dilemma over appointments

New Delhi: The Constitution bench of Supreme Court, set up to go into the validity of the new law replacing the collegium system of appointment of judges, failed to commence hearing on Tuesday with issues of conflict of interest and doctrine of bias cropping up again.

When the five-judge Constitution bench headed by Justice J S Khehar began hearing on Tuesday, some of the lawyers opposing the new law--National Judicial Appointments Commission Act-- raised the issue of conflict of interest and doctrine of bias against him. Instead of going into the question of the validity of the new law, the bench said it will first hear on Wednesday and settle the issue as to which five judges can be a part of the Constitution bench.

"We should decide who will hear the matter," said the bench, which also comprised Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel. "It is a very vital issue and we cannot keep it pending. We intend to pass an order as to who will hear the matter," the bench said, while expressing concern over the road blocks cropping up in deciding the validity of Constitution (99th amendment) Act 2014 and the NJAC Act 2014.

"The issue (of NJAC) is very important and needs to be settled. But if we get into all these issues, everything will be delayed," the bench said. Justice Khehar said the issue of conflict of interest can take various dimensions and there could be an eventuality a judge can even be asked not to hear the matters relating to land acquisitions only because the judge concerned may be having a small amount of land. The issues of conflict of interest and bias have been flagged because the NJAC will be headed by the CJI, two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel. (More) PTI SJK PPS RKS

When Justice A R Dave was heading the bench, senior advocate Fali S Nariman had raised the issue saying that being the second senior-most judge of the apex court he would be a member of the NJAC and it would not be proper for him to hear the batch of petitions challenging the validity of the Act.

At the outset when reservations were expressed towards Justice Khehar, who is at present a member of the outgoing collegium, heading the bench, said he had "no desire" to hear this matter. The judge, who is number three in hierarchy after Chief Justice of India (CJI) H L Dattu, said he was hearing the matter because the CJI had constituted the bench with him as part of it after Justice Dave had recused himself when identical issues were raised against him. Justice Khehar said the moment his name was decided to head the bench, he had written to the CJI that he will not be a part of either the NJAC or the collegium till the matter is finally heard and decided.

During the hearing when advocates were making submissions that the CJI, future CJIs and judges in the collegium and those becoming members of the NJAC should not hear the matter, Justice Khehar said, "who can hear it, who cannot hear it. All this is ridiculous. Let us lay down the principles".