A five-judge Constitution Bench of the Supreme Court will hear a petition Tuesday by two Congress MPs who have challenged Rajya Sabha Chairman M Venkaiah Naidu’s decision to reject the impeachment motion notice against Chief Justice of India Dipak Misra.
The petition filed by Congress MPs Partap Singh Bajwa and Amee Harshadyay Yajnik has been listed for hearing before a bench of Justices A K Sikri, S A Bobde, N V Ramana, Arun Mishra and A K Goel.
The petition contends that once a removal motion signed by MPs is submitted to the Rajya Sabha Chairman, he has no option but to constitute an inquiry committee to look into the charges.
It said Naidu’s April 23 decision was “ex facie illegal, arbitrary and violative of Article 14” and “deserves to be set aside for being wholly extraneous and ultra vires to the provisions of the Constitution of India and the Judges (Inquiry) Act”.
Appearing for the petitioners, senior advocate Kapil Sibal and advocate Prashant Bhushan mentioned the matter Monday morning before a bench of Justices J Chelameswar and S K Kaul, praying that it be listed for an early hearing.
“Why don’t you mention (it) before the Chief Justice of India,” Justice Kaul asked. Sibal replied that the registry had not numbered the petition. Justice Kaul said “you can go and tell the CJI that your petition is not being numbered”.
The bench referred to the Constitution Bench decision which said only the CJI will list cases before appropriate benches.
Sibal said: “I am aware of the procedure but it can’t be mentioned anywhere else. A person cannot be a judge in his own case. I am just asking for urgent listing and not seeking any interim relief.” Justice Chelameswar then told Sibal, “As far as I am concerned, I have only few more days here. I am on the verge of my retirement.”
“This petition raises a Constitutional question of importance. How do you deal with this situation? Who has the power? Lordships will have to clarify. You have to consider this. I understand that the CJI has the power to direct for listing but this case is against the Master of Roster,” Sibal said.
“The Registrar can’t take orders from the CJI in this matter. The CJI can’t delegate its Master of Roster powers to the Registrar,” he said.
With the lawyers persisting, the court told them to return Tuesday.
The causelist for Tuesday, which was put out Monday evening, showed that the petition had been marked for hearing before the five-judge bench of Justices Sikri, Bobde, Ramana, Mishra and Goel.
The petition contends, among other points, that the “Chairman has sought to reject the Notice of Motion of impeachment on the extremely flimsy pretext that the Members of Parliament who have presented the petition were ‘unsure’ of their case. This again is fallacious to say the least. At the stage of the notice of motion, it is not required that a case of proved misbehaviour is made out”.
It also contends that “it is not the Chairman’s prerogative to adjudicate whether there has been any abuse by the Hon’ble CJI of his power as the Master of the Roster. This is the job of the Inquiry Committee. The Impugned Order cites judicial authorities and goes into an impermissible arena of quasi-judicial determination of the charge which is impermissible and illegal”.
Later Monday, Bajwa told The Indian Express: “I have moved the petition in my individual capacity. I cannot say anything about the party leadership… and no discussion took place regarding the petition by the party leadership. I can only speak for myself.”