I tried to trace the chronology and the news coverage of the hearing of the case, to find out when exactly the AG first made such a plea, and whether it was belated. 

The petitions challenging the NJAC Act and the 99th Constitution Amendment Act were first heard by a three-Judge Bench comprising Justices Anil Dave, J.Chelameswar and Madan B.Lokur.  Before the NJAC was notificed on April 13, the plea of the petitioners was for a stay of the Act.  On March 10, the AG opposed the plea for stay before this Bench. He made no mention of the need for reference to an 11-Judge Bench. 

On April 7, the three-Judge Bench refused to stay the Act, before its notification, and accepted the plea of the petitioners and the respondents, that the matter involved substantial questions of law as to the interpretation of Constitution, and therefore directed that all matters of the group be placed before a larger Bench. The April 7 order refers to the counsel suggesting that the matter ought to be heard by a five-Judge Bench, but refrains from specifying the number, in the operative portion of the order. 

On April 15, Justice Anil Dave-led five-Judge Bench began to hear the matter.  While Fali Nariman opposed Justice Dave’s presence on the Bench on the recusal issue, the AG opposed his plea for recusal of Justice Dave, and requested that Justice Dave must continue to hear the case as he was to “decide the validity of NJAC in a dispassionate manner.”  He made no mention of the need to refer the case to an 11-Judge Bench.

On April 21, the recusal issue again came up before Justice J.S.Khehar-led 5-Judge Bench when it began the hearings.  The AG found nothing wrong in the Bench hearing the matter to lay down the principle on the issue of conflict of interest.  Again, he said nothing on the need to refer the case to an 11-Judge Bench. 

On April 22, the Bench rejected the plea for recusal of Justice Khehar, and decided to go ahead with the hearing.  Nariman too withdrew his plea for recusal.  Again, the AG said nothing about referring the case to an 11-Judge Bench, and asked the five-Judge Bench to go ahead with hearing the case on merits. Interestingly, the AG also made the claim that the collegium system ceased to exist, which was contested by Arvind P. Datar, another counsel for one of the petitioners. 

On April 23, the Bench obtained an undertaking from the AG that the NJAC would only deal with the question of extension of tenures of additional Judges in High Courts, and for this purpose, the two eminent persons would be nominated to NJAC soon.  There was no mention of the need for referring the case to an 11-Judge Bench by anyone including the AG. 

On April 27, the issue of the CJI’s refusal to participate in the NJAC came up before the Bench, which refused to issue a direction to the CJI, as suggested by some counsel.   Newspaper reports make no mention of the AG’s plea for reference on this day.

On April 28, the AG first mentioned the need for referring the case to an 11-Judge Bench.  The report on the proceedings carried by Legally India says that this was first expressed by Bishwajit Bhattacharyya, the petitioner-in-person on April 27, and was also supported by Fali Nariman himself. The report published in Indian Express on April 29, however, is silent on this.

The LI report mentions about the AG expressing surprise about the petitioners’ counsel raising the issue of independence of judiciary, as he probably thought the arguments would probably be confined to the merits of NJAC Act and the 99th Amendment independently of the judgments in the Second and Third Judges cases which were decided by a Bench of 9 Judges in 1993 and 1998 respectively. Thus although a strong votary of the argument that the two Acts had wiped out the collegium and the principles in which it was based, the AG perhaps believed that it was difficult to challenge the petitioners on the question of independence of judiciary, if they relied on the judgments in the Second and Third Judges cases. 

However, as the petitioners’ counsel began their arguments on the merits, the issue of reference temporarily took a back seat, only to return with a bang when the AG began his arguments, confining himself wholly to the reference issue.  With the Bench refusing to refrain from referring to the judgments in Second and Third Judges cases, the AG perhaps had no option but to persist with his reference plea. 

As there is no official record of the proceedings of the Court with regard to who said what, the reports in the media are the only source for a reader to make sense of the case, although journalists differ on whether a particular report as carried in a newspaper or a website is an authentic reproduction of the proceedings.  

Therefore, two questions arise – whether Fali Nariman shared the AG’s plea for reference to an 11-Judge Bench initially, but changed tack later, and whether the AG himself was not convinced about the need for reference initially, only to become vociferous about it later, as he belatedly realised that the delinking of the reference issue from the merits of the case was not possible. 

The plea for referring the case to an 11-Judge Bench, on the basis of arguments of the respondents’ counsel, appears to be based more on rhetoric, and the need for an “authoritative pronouncement” on the issue.  Clearly, there was nothing to prevent the counsel from making such a plea vociferously at the beginning of the hearing. But for reasons unknown, they didn’t. 

The other argument is that the principle that only Judges can protect independence of Judiciary, as laid down by the Court in the Second Judges case, needs to be reconsidered first, if the court is to hear the challenge to NJAC.  Clearly, this was not such a complex matter that it could not unravel itself at the beginning of the arguments – still, the counsel on both sides, saw merit in the five-Judge Bench hearing the matter. 

Is the Bench hesitant to refer the case to an 11-Judge Bench at this stage? The Bench appears to be disappointed that it is under pressure to do so, after having wasted several days hearing the arguments on merits. On the Bench, Justice Kurian Joseph is a strong votary for reference to an 11-Judge Bench, while others are not.  At least, three out of five Judges prefer delinking the reference issue from the challenge to the NJAC, a move which was opposed by the respondents. 

The principal issue seems to be whether the judgment in the Second Judges case would bind the current Bench of five Judges to decide the challenge to NJAC in favour of the petitioners.  With the sole exception of Justice Kurian Joseph, the Bench believes that though the judgment may be useful to understand the present challenge, it is not binding.  One has to wait and see how the Bench finally decides the issue.

ADDENDUM: Apart from other things, it was curious to find  Justice Kurian Joseph asking the counsel what the man on the street would think if a Bench of a smaller size (rather than a Bench of 11 Judges) decides the matter.  Some of the counsel for the respondents also seemed to assume that only a Bench of 11 Judges could “correctly” decide the matter.   These views are indeed debatable.