NJAC will not appoint judges to SC, HCs

The Centre's assurance came when the court said if it decides to stay or set aside the NJAC Act then what will happen

New Delhi: The National Judicial Appointments Commission, whose constitutional validity has been challenged, will not make fresh appointments of judges to higher judiciary till the issue is settled, the government on Thursday told the Supreme Court. The NJAC will only deal with appointment of existing additional judges of High Courts, whose tenures are ending during pendency of the controversy, the Court on Thursday said.

A five-judge Constitutional bench headed by Justice J S Khehar was assured by Attorney General Mukul Rohatgi the NJAC will not make appointments of judges to the Supreme Court and High Courts and will move the court in such an eventuality.The Centre's assurance came when the court said if it decides to stay or set aside the NJAC Act then what will happen to those persons who, in the meantime, are appointed to the bench either in the apex court or in high courts.

"If the Act stays then it (appointment) is fine," the bench, also comprising justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, said."I will first come and tell the court if any fresh appointment is made," the Attorney General said.The bench had yesterday asked Rohatgi to take instruction from competent authority about the additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court. During brief proceedings today, the Attorney General said barring four-five cases, all recommendations of erstwhile collegium have been accepted.

On the issue of re-appointment or extension of additional HC judges, he said that tenures of two or three judges of Assam High Court, seven to eight in the Bombay High Court are ending in June and hence, the issue be "kept open" till May 11 as the NJAC is likely to be constituted by May 4.The process to appoint two eminent persons in the six-member NJAC "will commence shortly" and the panel is "likely to commence working on May 4", he said. Senior advocate and noted jurist Fali S Nariman, appearing for Supreme Court Advocates on Record Association (SCAORA), which has challenged the Act, said that everybody knew that the Act will come into force.

"I am little worried that no attempt or special provision has been made (in the Act) with regard to interregnum... Something has to be done for the interregnum," he said, adding that some respect should have been paid to the collegium.The Attorney General then said that there is nothing to be done and he is "cognizant" of the issue and will take "full care" that no additional judge suffers due to the present situation.The bench then said, "at the moment we are not taking any sides. But as an interim arrangement, will it be possible to say that the additional judges (whose tenures are ending) will get an extension for three months. It's an arrangement".

"If I do what I am supposed to do, then please hold this till May 10," the AG replied. The NJAC Act has to implemented as it has neither been stayed nor set aside, the bench said. Rohatgi refuted the submission of Nariman that two eminent citizens, who would become part of the NJAC, will be embarrassed if the Act is set aside and said that they would be knowing that a litigation is pending. Earlier, the court had cleared decks for hearing of batch of pleas against the NJAC by rejecting the submission seeking recusal of presiding judge Justice Khehar on the ground of conflict of interest and bias.

The bench had then said that it will commence the hearing on April 27 to examine the validity of recently-notified the National Judicial Appointments Commission Act, which replaces the two-decade-old collegium system of appointment of judges to the higher judiciary. The court had also issued notices to the Centre, all state governments and union territories asking them to be ready with the matter which "purely involves the questions of law".

A consensus was evolved that the petition filed by the SCAORA0, in which senior advocate Fali S Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014. The Attorney General will be the lead counsel to defend the law which has got support from the Supreme Court Bar Association and states like Madhya Pradesh and Haryana for which senior counsel K K Venugopal and Harish Salve appeared.

The Constitution bench could not commence hearing so far with issues of conflict of interest and doctrine of bias cropping up on the last two occasions. Firstly, Justice A R Dave, the second senior-most judge, had recused himself from heading the bench on April 15 when Nariman and some other petitioners had submitted that it was not proper for him to preside the bench as there would be a conflict of interest since he will be the member of the NJAC and was also the member of the collegium.

Later, Chief Justice of India H L Dattu set up a new bench headed by Justice Khehar, who is the third senior most judge. However, his presiding over the bench was also opposed on the same grounds of conflict of interest and bias but instead of going into the question of the validity of the new law, the five judges said it will settle the issue as to which judges can be a part of the Constitution bench. 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.