Attorney General Mukul Rohatgi on Monday informed the Supreme Court that Chief Justice H L Dattu has refused to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC).

He told the five-judge constitution bench headed by Justice J S Khehar, which is hearing the issue of constitutional validity of the new law on appointment of judges to higher judiciary, that Dattu has written to Prime Minister Narendra Modi expressing his reservations about  participating in the meeting of the panel till the matter is finally decided by the apex court. Seeking a direction to the CJI to participate in the meeting, the AG argued that it is mandatory for the CJI to be the part of the panel in selection and appointment of eminent persons in the six-member commission.

The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six-member NJAC for appointment of judges to higher judiciary.

However, Justice Khehar said that the bench has decided to continue with the hearing on the merits of the case and if needed it will pass an interim order. “A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order,” the bench said.

On April 23, the apex court had said that NJAC will only deal with appointment of existing additional judges of High Courts, whose tenures are ending during pendency of the controversy. The AG had apprised the apex court that commission will not appoint judges to the higher judiciary and will move the court in such an eventuality.

The AG had said that barring a few cases, all recommendations of erstwhile collegium have been accepted.  On the issue of re-appointment or extension of additional HC judges, Rohatgi had said that tenures of two or three judges of Assam High Court and  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.

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