Supreme Court declines Centre's plea to refer NJAC issue to larger bench

 In a jolt to the government, the Supreme Court on Tuesday refused to entertain its plea for immediate reference of the challenge to the NJAC to a larger bench and decided to go into the merits of the issue from June eight.

At one stage, the bench headed by Justice J S Khehar also said there were provisions that the National Judicial Appointments Commission (NJAC) can function even if the Chief Justice of India has decided not to participate. A five-judge constitutional bench also clarified that the issue relating to challenge to the National Judicial Appointment Commission Act, 2014 can be referred to a larger bench at the later stage, if required.
Further, the bench directed that as an interim measure, additional High Court judges, whose present stint is due to end in near future, will continue in office for three months.

The bench did not accept the request of Attorney General Mukul Rohatgi that the matter be heard after the summer vacation--in the month of July. "This country or court may not have a matter of this importance. This is the enactment of the law by Parliament which has a majoritorian rule. This is a serious matter," the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel, said. The bench made it clear that it needed to hear the matter at the earliest as a detailed judgement has to be delivered for which time would be needed and vacation helps the judges in penning the verdicts. 

On such an important and serious matter it wanted to utilise the holiday period, Justice Khehar heading the bench said. The Bench in the pre-noon session had said that it would continue with the hearing on the merits of the matter and had alloted time frame for parties to conclude the arguments. However, when the bench assembled after the lunch break, Rohatgi pleaded that it was not possible for the Centre to complete the submissions on merits of the case in curtailed time duration of two-and half days.

"In the testing matter of this magnitude in which the constitution amendment has been challenged there should not be curtailment of time. "Curtailing time duration up to two-and-half hours is not an appropriate way for hearing," he said. The bench, which was reluctant and asked him to try and make an effort to complete the arguments, accepted to give more time only on the condition that he should be ready to argue in the vacation.

"You are entitled to know the reasons, though you may not agree with it. If a couple of months are taken to complete the matter a lot of people will have problem. There will be high courts with acting chief justices. The administration of judiciary is also important. "For four to five months, we cannot keep the judiciary in freezer," the bench said adding that the elevation of judges have to be done and "it cannot for any reason be stopped for four or five months".

The bench also said since there was no stay on the operation of National Judicial Appointment Commission, there are provisions that it can function even if the Chief Justice of India has decided not to participate.  Earlier, while asking the Attorney General to start the arguments, the bench said "we need discussion on various issues and the question of law has to be determined on the merits and a lot of thing you have covered. Let us try and if you don't we will find some ways. "It is too important a matter to rush," the bench said adding that "if you lat down the foundation and give a written submission".

However, Rohatgi said there was a need for taking a middle path and since the bench has already passed an order there should be some consideration that the matter should not be heard by curtailing time for the Centre. Senior advocate K K Venugopal, appearing for Madhya Pradesh Government, said number of aspects have to be covered and he also needed two to three days.

He said written submissions are no substitute for oral arguments and it is only the crystallisation of verbal submissions. The Centre was also supported by senior advocate T R Andhyarujina, who said matter of constitutional importance requires consideration and time should not be a matter of concern.

Earlier during the day, senior advocate F S Nariman, appearing for Supreme Court Advocates-on-Record Association, sought a stay on the operation NJAC on the ground that in any case the new system was not functioning as the Chief Justice of India has not been participating in it. Nariman said the NDA government has a full majority in Parliament and the "majoritorian" rule was trying to change the system.

He was supported by senior advocate Ram Jethmalani, who said the government was deliberately trying to create a vacuum and the court has to rise to the occasion to protect the independence of judiciary. The apex court had yesterday made it clear that it would first decide on the issue of referring the challenge to NJAC to a larger bench and then go into the merits of case.

Senior advocates Nariman and Ram Jethmalani, who are arguing against the NJAC Act, had said issue of referring the matter to a larger bench was an exercise in futility as it was "delaying tactics" by the Centre. Rohatgi, in his rejoinder submission, had said, "I dare say this that it is a case of extreme importance". This ground alone can be used to refer it to a bench of "sufficient strength", he had said.

He had further submitted that the bench cannot say that it would decide the issue of validity of NJAC before going the "whole hog". Rohtagi had said that the pleas challenging the new law be referred to a larger bench as the interpretation of Article 124 (relating to appointment of judges) by two earlier nine-judge bench verdicts need to be "re-looked".