The Supreme Court today rejected the Centre's plea to decide as a preliminary issue, whether to refer the petitions challenging the new law on appointment of judges to the higher judiciary to a larger bench of nine or eleven judges, before hearing on the merits of the case.
"The prayer made by the AG for disposing off the issue with reference to need of revisiting two judgments rendered in 1993 and 1998 to be decided as a preliminary issue before hearing merits of NJAC is declined," the Constitution Bench held.
Remarking that its refusal is in "everybody's interest", Justice J.S. Khehar, the lead judge on the bench, read out the short order from a torn diary page in which the bench had scribbled its conclusion.
The short order was passed after the Bench retired for a short recess of about half an hour to deliberate among themselves.
The Centre had wanted a larger bench of nine or 11 judges to first hear on the constitutionality of the judgments in the Second Judges case (1993) and Third Judges case (1998), which led to the creation of the Collegium system of judicial appointments, before considering the merits of the NJAC Act. Attorney General Mukul Rohtagi had contended that the pleas challenging the new law be referred to a larger bench as the interpretation of Article 124 (relating to appointment of judges) by two earlier nine-judge bench verdicts need to be "re-looked".
The five-judge bench had heard arguments advanced by both sides- the government as well as the petitioners, on the issue of reference for the past three days.
While AG said the Centre is "entitled" to seek the reference, senior advocate Fali Nariman, for main petitioner supreme court advocates-on-record association, had countered that it would be "futile exercise".
After their deliberations, Justice Khehar pronounced the order for the bench of 5 judges hearing the case, which also comprises Justices J Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel.The five-judge constitutional bench, headed by Justice JS Khehar, said that it will hear the arguments on merit and also clarified that if required then the matter can be referred to a larger bench. The bench, also directed that as an interim measure, the additional High Court judges, whose present stint is due to end in near future, will continue in office for three months or until superannuation whichever is earlier, pending disposal of the cases challenging the NJAC.
The Bench also said that Attorney General Mukul Rohatgi and others can advance arguments on merits. The Constitution bench then gave three more days to Centre and petitioners challenging NJAC validity to conclude their arguments.
Hearing will go on till 5 pm till May 15, the last working day before court closes for summer vacations.
Read the order here.