Writ Petition (Civil) Nos. 13, 14, 18, 23, 24, 70, 83, 108, 124, 209, 309, 310, 323, 341 of 2015, Transfer Petition (C) Nos. 391 and 971 of 2015. Case: Supreme Court Advocates-on-Record-Association and Ors. Vs Union of India (UOI). Supreme Court

Case Number:Writ Petition (Civil) Nos. 13, 14, 18, 23, 24, 70, 83, 108, 124, 209, 309, 310, 323, 341 of 2015, Transfer Petition (C) Nos. 391 and 971 of 2015
Party Name:Supreme Court Advocates-on-Record-Association and Ors. Vs Union of India (UOI)
Counsel:Case No
Judges:J.S. Khehar, Jasti Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, JJ.
Issue:Service Law
Judgement Date:October 16, 2015
Court:Supreme Court
 
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Judgment:

J.S. Khehar, J.

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THE RECUSAL ORDER

  1. In this Court one gets used to writing common orders, for orders are written either on behalf of the Bench, or on behalf of the Court. Mostly, dissents are written in the first person. Even though, this is not an order in the nature of a dissent, yet it needs to be written in the first person. While endorsing the opinion expressed by J. Chelameswar, J., adjudicating upon the prayer for my recusal, from hearing the matters in hand, reasons for my continuation on the Bench, also need to be expressed by me. Not for advocating any principle of law, but for laying down certain principles of conduct.

  2. This order is in the nature of a prelude-a precursor, to the determination of the main controversy. It has been necessitated, for deciding an objection, about the present composition of the Bench. As already noted above, J. Chelameswar, J. has rendered the decision on the objection. The events which followed the order of J. Chelameswar, J., are also of some significance. In my considered view, they too need to be narrated, for only then, the entire matter can be considered to have been fully expressed, as it ought to be. I also need to record reasons, why my continuation on the reconstituted Bench, was the only course open to me. And therefore, my side of its understanding, dealing with the perception, of the other side of the Bench.

    3(i) A three-Judge Bench was originally constituted for hearing these matters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ.. At that juncture, Anil R. Dave, J. was a part of the 1+2 collegium, as also, the 1+4 collegium. The above combination heard the matter, on its first listing on 11.3.2015. Notice returnable for 17.3.2015 was issued on the first date of hearing. Simultaneously, hearing in Y. Krishnan v. Union of India and Ors. Writ Petition (MD) No. 69 of 2015, pending before the High Court of Madras (at its Madurai Bench), wherein the same issues were being considered as the ones raised in the bunch of cases in hand, was stayed till further orders.

    (ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, Senior Advocate, in Supreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No. 13 of 2015), Mr. Anil B. Divan, Senior Advocate, in Bar Association of India v. Union of India (Writ Petition (C) No. 108 of 2015), Mr. Prashant Bhushan, Advocate, in Centre for Public Interest Litigation v. Union of India (Writ Petition (C) No. 83 of 2015) and Mr. Santosh Paul, Advocate, in Change India v. Union of India (Writ Petition (C) No. 70 of 2015), representing the Petitioners were heard. Mr. Mukul Rohatgi, Attorney General for India, advanced submissions in response. The matter was shown as part-heard, and posted for further hearing on 18.3.2015.

    (iii) The proceedings recorded by this Court on 18.3.2015 reveal, that Mr. Santosh Paul, (in Writ Petition (C) No. 70 of 2015) was heard again on 18.3.2015, whereupon, Mr. Mukul Rohatgi and Mr. Ranjit Kumar, Solicitor General of India, also made their submissions. Thereafter, Mr. Dushyant A. Dave, Senior Advocate-and the President of Supreme Court Bar Association, addressed the Bench, as an intervener. Whereafter, the Court rose for the day. On 18.3.2015, the matter was adjourned for hearing to the following day, i.e., for 19.3.2015.

    (iv) The order passed on 19.3.2015 reveals, that submissions were advanced on that date, by Mr. Dushyant A. Dave, Mr. Mukul Rohatgi, Mr. T.R. Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S. Nariman was still addressing the Bench, the Court rose for the day, by recording inter alia, "The matters remained Part-heard." Further hearing in the cases, was deferred to 24.3.2015.

    (v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. Divan, were again heard. Additionally, Mr. Mukul Rohatgi concluded his submissions. On the conclusion of hearing, judgment was reserved. On 24.3.2015, a separate order was also passed in Writ Petition (C) No. 124 of 2015 (Mathews J. Nedumpara v. Supreme Court of India, through Secretary General and Ors.). It read as under:

    The application filed by Mr. Mathews J. Nedumpara to argue in person before the Court is rejected. The name of Mr. Robin Mazumdar, AOR, who was earlier appearing for him, be shown in the Cause List.

    (vi) On 7.4.2015, the following order came to be passed by the three-Judge Bench presided by Anil R. Dave, J.:

  3. In this group of petitions, validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (hereinafter referred to as 'the Act') has been challenged. The challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of the Constitution of India has been altered and therefore, they should be set aside.

  4. We have heard the learned Counsel appearing for the parties and the parties appearing in-person at length.

  5. It has been mainly submitted for the Petitioners that all these petitions should be referred to a Bench of Five Judges as per the provisions of Article 145(3) of the Constitution of India for the reason that substantial questions of law with regard to interpretation of the Constitution of India are involved in these petitions. It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act should not be brought into force and the present system with regard to appointment of Judges should be continued.

  6. Sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into force, cause of action can not be said to have arisen. In the circumstances, according to the learned Counsel, the petitions should be rejected.

  7. The learned Counsel as well as parties in-person have relied upon several judgments to substantiate their cases.

  8. Looking at the facts of the case, we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore, we direct the Registry to place all the matters of this group before Hon'ble the Chief Justice of India so that they can be placed before a larger Bench for its consideration.

  9. As we are not deciding the cases on merits, we do not think it appropriate to discuss the submissions made by the learned Counsel and the parties in-person.

  10. It would be open to the Petitioners to make a prayer for interim relief before the larger bench as we do not think it appropriate to grant any interim relief at this stage.

  11. During the hearing of the cases, Anil R. Dave, J. did not participate in any collegium proceedings.

  12. Based on the order passed by the three-Judge Bench on 7.4.2015, Hon'ble the Chief Justice of India, constituted a five-Judge Bench, comprising of Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.

  13. On 13.4.2015 the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were notified in the Gazette of India (Extraordinary). Both the above enactments, were brought into force with effect from 13.4.2015. Accordingly, on 13.4.2015 Anil R. Dave, J. became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India, under the mandate of Article 124A (1)(b).

  14. When the matter came up for hearing for the first time, before the five-Judge Bench on 15.4.2015, it passed the following order:

    List the matters before a Bench of which one of us (Anil R. Dave, J.) is not a member.

    It is, therefore, that Hon'ble the Chief Justice of India, reconstituted the Bench with myself, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ., to hear this group of cases.

  15. When the reconstituted Bench commenced hearing on 21.4.2015, Mr. Fali S. Nariman made a prayer for my recusal from the Bench, which was seconded by Mr. Mathews J. Nedumpara (Petitioner-in-person in Writ Petition (C) No. 124 of 2015), the latter advanced submissions, even though he had been barred from doing so, by an earlier order dated 24.3.2015 (extracted above). For me, to preside over the Bench seemed to be imprudent, when some of the stakeholders desired otherwise. Strong views were however expressed by quite a few learned Counsel, who opposed the prayer. It was submitted, that a prayer for recusal had earlier been made, with reference to Anil R. Dave, J. It was pointed out, that the above prayer had resulted in his having exercised the option to step aside (-on 15.4.2015). Some learned Counsel went to the extent of asserting, that the recusal of Anil R. Dave, J. was not only unfair, but was also motivated. It was also suggested, that the Bench should be reconstituted, by requesting Anil R. Dave, J. to preside over the Bench. The above sequence of facts reveals, that the recusal by Anil R. Dave, J. was not at his own, but in deference to a similar prayer made to him. Logically, if he had heard these cases when he was...

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