The development took place as Justice Anil R. Dave, presiding over the five-judge bench, recused himself from hearing the matter following objections by petitioner Supreme Court Advocates-On-Record Association (SCAORA).Justice Dave recused himself after senior counsel Fali Nariman, appearing for the SCAORA, told the five-judge constitution bench that the National Judicial Appointment Commission has been notified and Justice Dave was an ex-official member on it. And, thus, he was in a situation of conflicting duties.

Besides Justice Dave, other judges on the constitution bench are Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.

Nariman told the constitution bench that he wants Justice Dave to hear their challenge to the constitutional validity of the NJAC Act, 2014, and the supporting constitutional amendment for it, but then he should stay away from the NJAC.

"The NJAC has been notified. Justice Dave is the ex-officio member of NJAC. There is a conflict of two conflicting duties. I don't want him not to hear the challenge, but then he should not be part of the NJAC, teach the government a lesson," Nariman told the court.

Flaying the government for notifying the NJAC Act and the constitution amendment, Nariman said that the government has overreached itself by notifying it ahead of the hearing by the apex court.

"It is highly improper, though not illegal," Nariman told the court, and added: "How does it look before the country? He (Justice Dave) is out of compulsion in the NJAC. Don't participate in the NJAC. Let them do what they want."

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