Two Congress MPs, who had moved the Supreme Court challenging Rajya Sabha Chairman M Venkaiah Naidu’s April 23 decision to reject the impeachment notice against Chief Justice of India Dipak Misra, withdrew their petition Tuesday following sharp exchanges with a five-judge bench which did not answer their query on who constituted the bench to hear their matter.
The bench of Justices A K Sikri, S A Bobde, N V Ramana, Arun Mishra and A K Goel “dismissed” the plea of Partap Singh Bajwa and Amee Harshadray Yajnik “as withdrawn” after senior advocate Kapil Sibal, appearing for the two MPs, maintained he would not proceed with the matter if he was not given a copy of the order by which the matter was allocated to the bench. The court asked him to argue the petition before it on merits, but Sibal declined to do so and said he was withdrawing it.
The exchanges even forced the bench to remind Sibal that he had started with the caveat that his sole aim was to uphold the dignity of the judiciary and not to malign anyone and that his refusal to argue the matter on merits could give the impression that “there is something else” to the petition.
“You must give me the order. Only then will I be able to decide whether I should proceed or not… Your lordships must tell me who constituted the bench and give me a copy of that order so that I can challenge it,” Sibal said as Justice Sikri told him “this will lead nowhere. You must proceed on merit”.
“It can’t be a secret order,” Sibal said. “If you want to proceed, argue on merits,” Justice Sikri told him. “In that case, I will withdraw the petition,” Sibal replied.
Opening his arguments, Sibal said the Chief Justice of India, who is the Master of the Roster, could not have allotted it to a five-judge bench by means of an administrative order. But this was opposed by Attorney General K K Venugopal — he was appearing for Venkaiah Naidu — who cited judicial precedents to underline that the CJI had the power. The bench also remarked that there did not appear to be any explicit provision in law preventing the CJI from listing it directly before a Constitution Bench.
On Monday, the petition was mentioned before a bench of Justices J Chelameswar and S K Kaul. Though Sibal requested the judges to list it, they did not oblige him and told him to return Tuesday. But on Monday evening, the causelist of the court showed that the matter had been listed before the five-judge bench.
Questioning this, Sibal wondered how the petition could go to a five-judge bench before it had been numbered or admitted. He said if it was the CJI who had constituted the bench, then he would like to challenge the order. Drawing the court’s attention to Article 145 (3) of the Constitution, which speaks about allotment of matters to Constitution Benches, Sibal said it can be so referred only if it involves a substantial question of law which requires the interpretation of the Constitution.
He insisted that the reference to five judges can only be made by a special order and that Supreme Court rules did not allow the CJI to pass an administrative order to refer it to five judges.
This prompted Justice Sikri to ask, “Where did you get that?”. Sibal replied “it is our interpretation of Article 145(3).
“Never before has a petition been referred to a five-judge bench immediately on filing and by an administrative order… We have to apply our mind to the order and whether it has to be challenged. If your lordships say that we may not challenge the order, then this order shall be the only order which cannot be challenged in the history of the Constitution,” Sibal contended, adding “we don’t want CJI to be involved with this matter at all since the proposed impeachment motion is against him”.
Justice Sikri said, “I agree that this is a piquant an an unprecedented situation… You say CJI to some extent is involved in this petition. But the other four most senior judges are also involved in some sense.” This was an apparent reference to the January 12 press conference by the four most senior Supreme Court judges — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — who questioned the conduct of the CJI, especially on allocation of cases.
Sibal said “here there is no judicial order formulating the question of law… the petition has not even been admitted. If someone felt that it involves such a substantial question of interpretation of the Constitution to warrant a reference to a five-judge bench, then it must be admitted.” He claimed that the Registry had intimated the Advocate on Record in the matter at only 10.29 am Tuesday that his case was listed for the day.
But the bench pointed out that the “list must have been circulated last (Monday) evening”. To this, Sibal said “but we have to prepare… the case was not numbered, it was not listed, and then the Constitution Bench is formed”.
Justice Bobde asked if he had applied for a copy of the administrative order. No, said Sibal.
Justice Goel asked, “Are you saying there is a bar to listing it before a Constitution Bench?” When Sibal replied in the affirmative, Justice Goel said, “No, rules permit it. Only exception is it must not be less than two.”
Justice Sikri too said there may not have been earlier decisions on the point and that Article 145 was silent on this aspect.
The Attorney General pointed out that there may arise situations where the CJI may need to refer matters directly to bigger benches. “Firstly, there has to be some authority by virtue of which the reference to a larger bench may be challenged. Secondly, as to the reference being made on the judicial side, it is settled that, say, a two-judge bench may require a matter to be placed before the Chief Justice for the constitution of a larger bench. So far as the administrative side is concerned, in some cases, it may be necessary for a matter to be placed before a three-judge bench directly by the Chief Justice of a High Court,” he said.
Venugopal referred to the 2005 judgment of the Supreme Court in the Central Board of Dawoodi Bohra Community vs State of Maharashtra in which it was held that the Chief Justice had the power of framing the Roster and can direct any particular matter to be placed for hearing before any particular Bench of any strength. Here “the Chief Justice is to be understood as the Chief Justice in exercise of his powers on the administrative side,” he pointed out.
He also wondered why only two MPs of one political party had approached the court whereas the notice for motion of impeachment had been signed by 64 MPs of seven political parties. The others, he said, must sign a resolution authorising the two MPs to file the petition, or it may lead to the presumption that they had accepted the Rajya Sabha Chairman’s decision.
Meanwhile, advocate Prashant Bhushan filed an application under the Right to Information Act with the Supreme Court Registry, seeking a copy of the order allocating the case to the five-judge bench.
Later, addressing a press conference, Sibal said there was no politics behind the petition challenging the rejection of the impeachment notice and the sole purpose was to ensure independence of the judiciary and dignity of the court. “This is not a political issue. There is no politics behind this… There is no personal interest,” he said, demanding that he be given a copy of the order allocating the case to the bench.