An issue of conflict of interest over hearing a batch of petitions challenging the constitutional validity of the new law to appoint judges was raised once again on Tuesday with some of the litigants questioning Justice J S Kehar’s nomination to head the bench to decide the matter.
After an objection was raised by Mumbai-based lawyer Mathew Nedumpara over Justice Kehar heading the five-judge constitutional bench, the bench decided to settle the issue as to which judges of the Supreme Court can hear the constitutional validity of the new law before going into its merits.
Nedumpara also received supported from senior advocate Fali Nariman, who appears for the Supreme Court Advocates-on-Record Association.
Upset over the preliminary objections raised, Justice Kehar said the constitution bench would first settle the principle on the definition of an appropriate bench to stop bench-hopping. “This is unbelievable that someone or the other raises an objection. Maybe, we can lay down the parameters so that in future the Chief Justice of India (CJI) follows them while constituting benches,” he said while fixing Wednesday to hear all the parties on this issue.
“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 also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel said.
Justice Kehar said he had “no desire” to hear this matter. He was hearing it because of the fact that CJI had constituted the bench with him as part of it after Justice A R Dave had recused himself, he said.
Mathew, who is in support of the National Judicial Accountability Commission Act, said the bench should be headed by a judge who is not in the line to become the CJI. Justice Kehar is to become the CJI in January 2017 and he is also part of the collegium.
Nariman suggested that the matter can be heard by the CJI along with two senior-most judges and two other judges of CJI’s choice. He also said that he is withdrawing his objection.
Attorney General Mukul Rohatgi argued that the ideal situation would have been to bring Justice Dave back on the bench as there was no conflict of interest.
“Most of the times judges decide same issues in administrative as well as in judicial side,” he added.
A three-judge bench of the apex court had on April 7 referred the matter to a five-judge Constitution Bench.