CJI Dattu’s decision creates bizarre situation
By refusing to be part of a panel to select two ‘eminent' persons that would complete the constitution of the National Judicial Appointments Commission, Chief Justice of India Hl Dattu has created a bizarre situation. Unless the two members are appointed, the NJAC cannot function. And unless the NJAC begins work, there can be no appointments in the judiciary across the country. Chief Justice Dattu refused to participate on the pretext that it would be improper for him to do so since the Supreme Court was hearing a case over the replacement of the earlier collegium system to select judges by the National Judicial Appointments Commission. If a similar logic is applied further, since the apex court's judges have been appointed through the collegium system, no judge of the Supreme Court ought to be even adjudicating on the issue on the ground of conflict of interest!
Chief Justice Dattu has ended up creating a constitutional crisis of sorts. After all, the commission has been formed by an Act of Parliament. Attorney General Mukul Rohatgi has observed that the Chief Justice of India's stand is “unconstitutional”. Even if one were to not use a strong term as that, it is clear that Chief Justice Dattu's decision has led to a crisis which must be resolved at the earliest. The Chief Justice must reconsider his position in the interests of the judiciary and the larger interests of the people of the country who look to the courts for justice. If the courts are under-staffed — and the existing vacancies are already a cause of deep concern — people will be devoid of prompt justice.
There is no conflict between the Chief Justice of India being in the selection panel and the apex court hearing a plea against the NJAC. The case before the court can go on. After all, the Supreme Court itself had refused to stay the functioning of the NJAC. In other words, if the commission can proceed with its mandated task, the Chief Justice of India has a responsibility to contribute to it, as the law provides that he be part of the process, along with the Prime Minister and the leader of the Opposition, to appoint the two ‘eminent' members. As it is, one apex court judge had recused himself from hearing the case on the plea that he would be part of the new selection process.
The situation is piquant also because no Supreme Court judge can direct the Chief Justice to take part in the deliberations. The five-member Bench which is hearing the case against the NJAC expressed its helplessness when the Attorney General sought an interim order. The Bench said it could not ask any judge to “do something which he does not wish to do”. The NJAC also comprises two other judges of the apex court, and one wonders how the situation will unfold if they too refuse to participate. legal opinion appears to be divided on the issue.
While some experts believe that the Government should move ahead without the participation of the Chief Justice of India, at least on the urgent re-appointment of the additional judges to the various High Courts— the Supreme Court had recently asked the Government to call for a meeting “at the earliest” to consider the matter — there are others who differ. They even want the constitutional amendment that has cleared the way for the NJAC, to be scrapped.
