SC rejects plea for larger bench in NJAC case

Court to hear challenges to new law from June 8

The Supreme Court on Tuesday declined to set up a larger bench of nine or 11 judges to examine the validity of the National Judicial Appointments Commission (NJAC) Act.

A five-judge Constitution bench, presided by Justice J S Khehar, rejected the government’s plea for a reference to larger bench. The court, which put the matter for hearing from June 8 during summer vacations, also said it would first go into the merit of the matter before deciding on reference.

The court’s order came as a setback to the government which has been canvassing for referring the matter to larger bench to put a final authority on the issue relating to appointment of judges in high courts and the Supreme Court. A six-member NJAC replaced the collegium system, which was put in place following the apex court’s verdicts in 1993 and 1998.

The bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and A K Goel, delivered a short order after taking over 30-minute break to discuss the issue of reference.

In an interim arrangement, the bench said, additional judges in high courts, whose probation terms are ending, will get an extension of three months or till the date of their superannuation, whichever is earlier.

Government’s claim
As the hearing began on a batch of PILs challenging validity of the NJAC Act, the bench observed that the court was very much concerned about the “vacuum” created over the government’s claim the collegium has gone forever but the NJAC was also not in place.

Attorney General Mukul Rohatgi, however, said: “If one functionary is unavailable or is unwilling and does not want to sit, it does not mean that constitutional amendment will fail. If a vacuum is created because of one person, we should not presume that the amendment will not work. Presumption of constitutionality is of highest level in case of a constitutional amendment.”

Chief Justice of India Justice H L Dattu who is to head NJAC as chairperson has refused to be a part of the panel citing the pendency of the case.

Rohatgi contended that there was nothing in law to prevent the two other functionaries, the prime minister and leader of the single largest party in opposition, to go ahead and select two eminent members so that the NJAC is created.

The NJAC is a six-member body, comprising the Chief Justice of India and two senior judges of the top court, Union law minister and two eminent persons.