The constitutional validity of the National Judicial Appointments Commission (NJAC) is under challenge before a Constitution bench of the Supreme Court. A total of 10 writ petitions (and, a transfer petition) are pending adjudication on this issue, the main petition having been filed by the Supreme Court Advocates on Record Association which is being argued by eminent senior lawyer Fali Nariman. When these writ petitions came up for hearing on 15 April, 2015, before a Constitution bench headed by Justice Anil R. Dave (other judges on the bench being Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel), he had to recuse himself from the hearing after an objection was raised by Fali Nariman on the ground that Justice Dave had a conflict of interest since he was a member of the NJAC whose constitutional validity was under challenge. Accordingly, the said Constitution bench of the Supreme Court could not proceed further with the hearing of the above petitions. Now, a new Constitution bench has been constituted which will hear these petitions on 21 April, 2015, with Justice Jagdish Singh Khehar heading the new bench. However, if it can be said that Justice Dave had a conflict of interest in this matter, then Justice Khehar will also have a similar conflict of interest.
It is noteworthy that Justice Dave headed the 3-judge bench which, vide its decision dated 7 April, 2015 (see here), had referred these petitions to a 5-judge Constitution bench. Other two judges in the said 3-judge bench were Justice J. Chelameswar and Justice Madan B. Lokur. At that time, nobody raised the objection of conflict of interest on the part of Justice Dave. However, on 13 April, the Government by notification brought into operation the Constitution (99th Amendment) Act, by which the NJAC was created, and also the National Judicial Appointments Commission Act. Thus, on 13 April, the NJAC was formally constituted. It is pertinent to point out that the Chief Justice of India and two other senior most judges of the Supreme Court are members of the NJAC by virtue of their positions. Therefore, on 13 April, Justice Dave, who is the third senior most judge in the Supreme Court at present (after the Chief Justice of India H.L. Dattu and Justice T.S. Thakur) automatically became a member of the NJAC by operation of the statute that was brought into operation by the Government notification. This was the reason on the basis of which Fali Nariman raised objection to Justice Dave being a part of the Constitution bench that was supposed to hear the aforesaid petitions challenging the constitutional validity of NJAC. Nariman argued that Justice Dave has a conflict of interest since he has to examine the constitutional validity of NJAC while he himself being a member of the NJAC.
However, certain other aspects have been completely ignored while requesting Justice Dave to recuse himself from hearing the said petitions on the ground of conflict of interest. With the NJAC coming into existence, the Collegium system of appointing judges has been replaced. Therefore, if NJAC is held to be constitutionally invalid and impermissible, then the beneficiary would be the Collegium system. It is noteworthy that 5 senior most judges of the Supreme Court (including the Chief Justice of India) are members of the Collegium. Therefore, if a judge of the Supreme Court is ineligible to decide the constitutional validity of NJAC on the ground that he is a member of NJAC, then equally a judge should be ineligible to decide this issue if he is a member of the Collegium, since it will be the Collegium which will be revived if NJAC is held to be constitutionally invalid. Thus, why nobody took objection to Justice Dave being a member of the Collegium when he headed the aforesaid 3-judge bench that heard these petitions and referred them to a Constitution bench vide their decision on 7 April, 2015?
Likewise, Justice Khehar, who will now be heading the newly constituted 5-judge bench on 21 April, 2015, on this issue, is also a member of the Collegium since he is the fourth senior most judge in the Supreme Court at present. Moreover, on 3 December, 2015, Justice Khehar will himself become a member of the NJAC due to retirement of the present Chief Justice of India H.L. Dattu. Further, Justice Khehar will become the Chief Justice of India on 4 January, 2017, and in that capacity he will become the chairperson of NJAC. If the NJAC is held to be constitutionally valid, it is likely to exist for a long duration, and therefore Justice Khehar becoming its member with effect from 3 December, 2015, and he becoming its chairperson with effect from 4 January, 2017, are not imaginary facts. Thus, it is clear that if the objection of conflict of interest applies to Justice Dave, then it should apply equally to Justice Khehar.
The matter does not end here. Justice Chelameswar, who is also a part of the said Constitution bench, will become a member of the Collegium on 3 December, 2015, and he will become a member of the NJAC on 4 January, 2017. Thus, what about his conflict of interest?
Similarly, Justice Lokur, who is also a part of the above Constitution bench hearing these petitions, will also become a member of the Collegium as well as of the NJAC in future. So, what about his conflict of interest? And, so on.
It is also pertinent to mention that all the existing judges of the Supreme Court have been appointed through the Collegium system, and can be said to be the beneficiaries of the same. Moreover, the Supreme Court, as an institution, is involved in the issue of creation of NJAC, since the power of the Supreme Court to appoint judges to Supreme Court and high courts will be taken away by the NJAC. The NJAC issue can perhaps be considered to be a litigation between the judiciary and the executive, given the history of the litigation that led to the creation of the Collegium system by way of judicial activism and/or interpretation in view of the fact that there was no provision for the Collegium system for appointment of judges when the Constitution came into being in 1950 in its original form. So, should it be said that the judiciary, in particular – the Supreme Court, has a conflict of interest on this issue?
I am of the opinion that by raising objection to the continuance of Justice Dave on the Constitution bench hearing petitions on the validity of NJAC, a Pandora’s box has been opened. An unnecessary controversy has been created. If you raise the objection of conflict of interest on the part of one judge, you cannot stop there, for, a similar objection would arise in respect of other judges, and perhaps also in respect of the Supreme Court as a whole. If you raise the objection of conflict of interest on the ground of a judge being a member of the NJAC, you cannot stop there, for, a similar objection would arise in respect of a judge being a member of the Collegium. As mentioned above, if NJAC is to be held constitutionally invalid, then the Collegium system revives. Thus, members of the Collegium have similar conflict of interest that members of the NJAC would have. So, where is the end? Either you do not raise an objection or take it to its logical conclusion and do not stop midway.
It may also be pointed out since Justice Dave is a member both of the NJAC as well as the Collegium, his so-called conflict of interest would have been neutralised.
Moreover, there is a big difference between a “personal” conflict of interest and an “institutional” conflict of interest. The relevant question to answer is whether he had any “personal” interest in being a member of NJAC. Was he to get any “personal” benefit as a member of NJAC if NJAC was held to be constitutionally valid?
Insofar as the “institutional” conflict of interest is concerned, it has perhaps been answered long back at the time of framing of the Constitution itself. It is well established that Supreme Court is the final arbiter in the interpretation of the Constitution. This is so even if the interpretation of the Constitution relates to a question in which the Supreme Court itself is interested. The Constitution is very clear on this issue. No other institution has been given the role of being the final arbiter in such questions. There is no other alternative. Therefore, whether or not one likes, the makers of the Constitution have shown immense faith in the neutrality of the Supreme Court even in respect of issues in which the Supreme Court itself is interested. Period.
Accordingly, the issue of the “institutional” conflict of interest loses significance in respect of a judge of the Supreme Court. A judge of the Supreme Court being a member of the NJAC or of the Collegium is only by virtue of being a judge of the Supreme Court. Therefore, even though such positions are slightly different from the position of being a judge of the Supreme Court, I feel that the “institutional” conflict of interest should not be an issue for this purpose. The question of conflict of interest, thus, boils down to the question of “personal” conflict of interest, if any. In my considered opinion, Justice Dave had no “personal” conflict of interest as a member of NJAC if he had continued to be a member of the Constitution bench. More so, because, whatever conflict of interest he could have had as a member of the NJAC was neutralised by an opposite and equal conflict of interest as a member of the Collegium.
I am of the firm opinion that we should have full faith in the institution of judiciary. If there is one institution that has saved our democracy, the rule of law, and the Constitution, it is the Supreme Court of India. We should not try to malign individual members of the judiciary by raising unnecessary questions of conflicts of interest, where none exists. Of course, in a rare individual matter, if a particular judge has some “personal” interest, it has been the tradition for the judge to recuse himself from hearing that matter; and, fortunately, the judges of the Supreme Court have not been found wanting in this regard. Many a time, it has been noticed that a judge would, of his own volition (or on being requested or informed by a counsel), recuse himself from hearing a matter where he finds that there could possibly be a personal conflict of interest. It is, therefore, unfortunate that objection should have been raised about the continuance of Justice Dave on the Constitution bench that was to decide on the constitutional validity of NJAC. That objection was not called for, and in any case, if it was a valid objection then a similar objection would apply to other judges also being a part of the same Constitution bench. The bar has got it wrong by raising such objection against Justice Dave, particularly when it is well-known that he is one of the most respected judges in Supreme Court today, known for his calmness, balanced approach and impeccable integrity.
Update (21 April 2015): My views expressed above on 19 April 2015 have been vindicated today. As reported by Indian Express (here), when the new Constitution bench started hearing the above petitions today (21 April 2015), the “…arguments witnessed contentions as to whether those who are in the reckoning of becoming the Chief Justice of India; who are part of the collegium or who would become the members of the NJAC should recuse themselves from hearing this matter”. Therefore, the Constitution bench has posted the matter for 22 April 2015 to first decide as to which judges should hear this matter.