|The Supreme Court
New Delhi, Aug. 24: The three senior-most Supreme Court judges will not be part of the bench that tomorrow hears a batch of petitions challenging the constitutionality of the twin bills Parliament recently passed on judges’ appointments.
Chief Justice R.M. Lodha and Justices H.L. Dattu and T.S. Thakur have excused themselves because they are to become members of the proposed National Judicial Appointments Commission that the bills look to set up.
The commission is to replace the judges-only collegium (panel) that now appoints apex court and high court judges. But that can happen only after both bills are ratified by at least half the states and then obtain the President’s assent.
Still, there is a feeling that it may not be proper for the top three judges to hear the matter in the light of the doctrine that “a person cannot be a judge in his own cause”.
The matter has therefore been listed before a bench headed by the fourth in seniority among the Supreme Court’s 30 judges, Justice A.R. Dave, who will hear the petitions along with Justices J. Chelameshwar and A.K. Sikri.
Those who now make up the collegium are the Chief Justice and the next two to four senior-most Supreme Court judges. The proposed six-member commission will include the Chief Justice, the two other senior-most judges, the Union law minister and two eminent citizens.
By handing veto power to any pair of dissenting members, the bills give the government a say in judges’ appointment that it now lacks. However, all the four writ petitions challenging the bills contend that they constitute an attack on judicial independence and, therefore, on the basic structure of the Constitution.
One of them has also raised a procedural question. It argues the “legislative bill” that proposes the commission is invalid because it was introduced and passed simultaneously with — and not after —the constitutional amendment bill that sought to make it possible to have such a commission.
This petition, moved by the Supreme Court Advocates on Record Association, argues the legislative bill was therefore passed at a time Article 124(2), which now guides judicial appointments, was in force as originally enacted and had not yet been amended. If this contention is upheld, the legislative bill is likely to be ruled unconstitutional.
Even the constitutional amendment bill has come into question. The petitioners have cited the Keshavananda Bharati case of 1973, where a 13-judge Constitution Bench had ruled that Parliament lacked the power to amend the Constitution in matters relating to the separation of powers between the legislature, executive and the judiciary.
Eminent jurist Fali Nariman is part of the petition that raises the procedural point. The other three were moved by advocates Manohar Lal Sharma, R.K. Kapoor and Bishwajit Bhattacharya, a former additional solicitor-general.