NJAC to deal with additional judges till case on, SC told

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The government on Thursday informed the Supreme Court that during the pendency of the appeal against the National Judicial Appointments Commission (NJAC) and the constitutional amendment backing it, the commission would only deal with cases of additional judges whose terms would be coming to an end.

The constitution bench comprising Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel recorded the statement of Attorney General Mukul Rohatgi that the NJAC, which would be operationalised shortly, will only deal with the appointment of existing additional judges.

The court in its order said Attorney General Rohatgi "having obtained instructions, states that the constitution of the National Judicial Appointments Commission will be completed by nomination of two eminent persons, at the earliest".

"He further states that consequent upon the nomination of two eminent persons, the NJAC shall presently deal with appointments of existing Additional Judges only," the court said in its order recording Rohatgi's statement.

It said that for further interim directions, the matter will be taken up on May 11.

At the outset of the hearing on Thursday to decide on the fate of additional judges whose term may be coming to an end during the hearing of the challenge to the NJAC, the attorney general told the court that the constitution of the NJAC will be completed by the selection and appointment of two eminent people.

Consequent upon the nomination of two eminent people to the commission during the pendency of the proceeding, the NJAC will deal with the cases of additional judges.

Rohatgi on Thursday once again reiterated that even without the presence of two imminent people - to be nominated by the committee comprising the prime minister, Leader of Opposition or that of largest party in Lok Sabha and the Chief Justice of India - the NJAC with four members (CJI, two seniormost apex court judges after him and the law minister) can take decisions on the appointment of judges.

He said this was a provision in the constitution amendment.

Attorney General Rohatgi told the court that the first batch of three additional judges who will complete their tenure will be from Assam (Gauhati High Court) on May 20.

The next will be of 7-8 judges from the Bombay High Court in the month of June. Then there will be no cases in July and August. Then the cases of additional judges for confirmation or extension of tenure would come in September only.

Sharing the concern of counsel Fali Nariman appearing for the Supreme Court Advocate-on-Record Association (SCAORA) on the fate of additional judges, Rohatgi said he too does not want that after two years, an additional judge is called to go home.

"I will state that no single judge who is an additional judge will lose out on account of laxity on the part of the government," Rohatgi told the court.

He said this as the court suggested an extension of three months to all additional judges whose tenure was coming to an end during the course of the hearing of the matter by it.

The court said that "at the moment we are not taking sides. You (government) cannot accept earlier process (collegium system), they (petitioners) think that the new process (NJAC) is bad. Those who will complete their additional judge tenure will get an extension of three months".

Addressing the concerns of the court, Rohatgi told the court to have a hearing on May 11 in this aspect and, if needed, then take a call.

The court wanted to record in its order that the NJAC would not make any fresh appointment but left it as Attorney General Rohatgi told the court that he had to take instructions.

Rohatgi, however, told the court that the government would come to court before taking any fresh step.

Initially, when Rohatgi tried to resist Nariman's suggestion seeking embargo on any fresh appointment, the court said it may embarrass the imminent people who may get appointed as judges and will have to go in case the court decides against the NJAC Act and the constitutional amendment.