New Delhi: The decision to remain a member of the five-judge constitutional bench, which on Friday struck down as unconstitutional the NJAC Act, was taken not by the heart but by the mind, Justice JS Khehar said.
Justice Khehar, who headed the bench, said that the reason cited while seeking his recusal that he was part of the collegium was not "well founded" and if he had recused while acceding to the prayers by various litigants then it would have laid down a "wrong precedent".
The reasoning given by Justice Khehar on this issue was well supported by the other four judges of the bench, justices J Chelameswar, MB Lokur, Kurian Joseph and AK Goel.
"The decision to remain a member of the reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but that of the head," Justice Khehar said.
He said not only he but the other four judges of the bench would also become a part of the collegium or the NJAC and in "such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues. But, that was not the manner in which the issue has been canvassed."
"A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to," he noted.
Justice Khehar also said that before assuming his office, a judge takes an oath to discharge his duties without fear or favour and he would be breaching his oath if he accepts a prayer for recusal, unless justified.
"It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office, to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court," he said.
Senior advocate Fali Nariman, who appeared for one of the petitioner Supreme Court Advocates-on-Record Association, had sought recusal of Justice Khehar on the ground that he was part of the five-member collegium system being the fourth senior most judge of the apex court and with the operation of the NJAC he would have been in the six-member NJAC for the selection and appointment of judges to higher judiciary.