NJAC row: Government urged Supreme Court to force CJI HL Dattu to take part in consultative process

NEW DELHI: The government on Monday urged the Supreme Court to force Chief Justice of India HL Dattu to take part in the consultative process which will eventually culminate in the constitution of the National Judicial Appointments Commission ( NJAC), a move that could spell a constitutional stalemate of sorts.

The CJI has refused to part of a high-powered panel which will pick two eminent persons to sit on the broadbased six-member NJAC, which will replace the collegium system of appointments, while the bench debates whether the change in the system of appointing superior court judges is in consonance with the constitutional goal of judicial independence.

He turned down the invitation on Saturday last week, throwing the Narendra Modi government’s plans to constitute the NJAC into disarray as he said it would be neither appropriate nor desirable for the CJI to be part of the high-powered panel while the court debated its legality.

Dattu had earlier conveyed this stand to Law Minister DV Sadananda Gowda, who had said that the government would not insist on constituting it till the court took a call on the legality of the NJAC.

But with the government formally inviting Dattu again on Saturday, after the Modi government took a stand in court that the CJI would have no option but to be part of the NJAC as the Constitution had been amended and this had been brought into effect, the CJI again reiterated his position.

On Monday, Attorney General for India Mukul Rohatgi apprised the five-judge bench, which was hearing a slew of petitions against the NJAC, about Dattu’s refusal and urged the top court to pass interim orders to ensure that the Chief Justice of India takes part in the consultation process that precedes the constitution of the NJAC, which will revive the executive’s say in the process.

The unprecedented demand sent the bench into a huddle, with Justices JS Khehar, Jasti Chelameswar, Madan B Loku, Kurian Joseph and Adarsh Kumar Goel retiring from the court room to their chambers to deliberate among themselves on the issue, before they decided to examine the issue at length and not pass any interim orders for the moment.

The differences between the executive and the judiciary spilled over into public domain and sharp words were exchanged at the outset when Justice Khehar demanded to know what the government proposed to do on the confirmation of additional judges whose tenures were coming to an end by May. The Attorney General responded by asking the bench to first direct the CJI to take part in the pre-consultative process for the NJAC. "Therefore, the position is of a stalemate, a constitutional stalemate.

It would also not be proper to stay the statute. This is a stalemate created by one of the members (CJI) of the three member selection committee," Rohatgi said.