Will CJI find five judges without ‘conflict of interest’?

NEW DELHI: Chief Justice H L Dattu has a difficult task ahead in constituting a new five-judge bench after senior advocate Fali S Nariman said Justice A R Dave attracted ‘conflict of interest’ disqualification in hearing petitions challenging the validity of National Judicial Appointments Commission (NJAC) Act.
Justice Dave recused after Nariman said, “Presiding judge of the five-judge constitution bench, Justice Dave, has now become (not out of choice but by force of statute) a member ex-officio of the NJAC, whose constitutional validity is challenged.It would be appropriate if it is declared by an order of the court that the presiding judge of the bench will take no part whatever in the proceedings of the NJAC.”
But of the 28 judges in the Supreme Court at present, there are very few who will not attract the ‘conflict of interest’ disqualification. That is because six of them will go on to become Chief Justices of India at different times up to the year 2022 and the rest will end up as either the senior-most or the second senior-most judge in their Supreme Court tenure. The CJI and the two senior-most judges are part of NJAC.
It could also be looked at from the flip side. If the NJAC gets quashed, then almost all judges would attract conflict of interest at present or in future. That is because the collegium comprises the CJI and the four senior-most judges.
Extending Nariman’s argument, those who in future could become part of NJAC, or collegium in the event the court strikes down NJAC to restore the old system, could also be said to attract ‘conflict of interest’.
Till the 1990s, the executive appointed judges to the Supreme Court and high courts in consultation with the CJI. Three apex court judgments changed the executive-driven judges’ appointment system to one in which the CJI and senior judges alone had a say, reducing the government to a rubber stamp.
All three judgments were delivered by senior judges of the Supreme Court, who went on to become Chief Justices of India. But no counsel ever leveled ‘conflict of interest’ charge against these judges despite many of them becoming CJIs and the head of the collegium to appoint judges on the basis of their own judgments.
The first one which laid the foundation for the two judgments in the 1990s was delivered on December 30, 1981. The members of the seven-judge bench were Justices A Gupta, D Desai, E Venkataramiah, P N Bhagwati, R Rathore, S M Ali and V Tulzapurkar. The judgment was authored by Justice Bhagwati, who went on to become CJI.
Foundation for the collegium system was laid down on October 6, 1993, by a seven-judge bench of Justices S R Pandian, A M Ahmadi, J S Verma, M M Punchi, Yogeswar Dayal, G N Ray and A S Anand. Four of them -- Justices Ahmadi, Verma, Punchi and Anand -- went on to become CJIs and presided over the collegium system.
The collegium system was reinforced through the opinion given by a nine-judge bench comprising Justices S P Bharucha, M K Mukherjee, S B Majmudar, Sujata V Manohar, G T Nanavati, S Shagir Ahmad, K Venkateswami, B N Kripal and G B Patnaik on a presidential reference seeking a clarification on the conflict between the constitutional provision and the SC-devised collegium system. Three of nine judges -- Justices Bharucha, Kripal and Patnaik -- became CJIs.