#NJAC: Will decide on the merits of the case first, rules Supreme Court

The Supreme Court today refused to revisit the Second Judges case as a preliminary issue in the petitions challenging the Constitutionality of the National Judicial Appointments Commission (NJAC). This decision was pronounced at 11.30 AM today by the Constitution Bench presided by Justice JS Khehar which has been hearing the case..In a very concise order, the Court categorically declined the Centre’s plea to first decide on the Second Judges case by referring the matter to a larger Bench before going into the merits of the case. The Court also provided for an interim arrangement with respect to those Additional judges of the various High Courts whose tenures are expiring soon..“The prayer made by the learned Attorney General for India for disposing of the issue with reference to the need of 6 re-visiting the two judgments rendered by this Court in Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441, and Special Reference No. 1 of 1998 Re: (1998) 7 SCC 739 to be decided first, as a preliminary issue, before hearing the main case on merits, is declined.As an interim measure, we direct the appointment of Additional Judges in High Courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal”,.This brings the curtain down on the extensive submissions made by Attorney General Mukul Rohatgi seeking a reference to a 11 judge Bench so as to reconsider and expressly overrule the Second Judges case of 1993 which was decided by a 9 judge Bench. The Centre had made a strong case for reference to a larger Bench saying that the petitioners’ case is based on the Second Judges case which was wrongly decided by the Supreme Court. Rohatgi had argued that the issue pertaining to the Second Judges case should be decided first before going into the merits of the case..Appearing for lead petitioner Supreme Court Advocates on Record Association, Fali Nariman had contended that the Centre’s stance was contradictory since it was arguing that the Second Judges case was wiped out by insertion of Article 124A and was at the same time praying for reconsidering the case, thereby acknowledging its survival notwithstanding the Constitutional amendment..Though the Court has declined to consider the issue pertaining to Second Judges case and reference to a larger Bench as the preliminary issue, it is open for the Court to reconsider this issue at a later point of time..The case has now been posted for hearing on June 8, i.e. during the summer holidays. Earlier today, the Court had planned to finish the hearing by this week. But the Court changed this plan after a request from the Attorney General that the case needs to be heard at length on merits.