Congress withdraws plea on CJI impeachment

New Delhi: In a surprising and unprecedented development on Tuesday, the Supreme Court, without going into the merits, “dismissed as withdrawn” the writ petition filed by two Congress MPs challenging the order of Rajya Sabha Chairman M. Venkaiah Naidu refusing to admit the impeachment motion against Chief Justice of India Dipak Misra.

A five-judge Constitution Bench comprising Justices A.K. Sikri, S.A. Bobde, N.V. Ramana, Arun Mishra and A.K. Goel dismissed the petition after refusing to give details of the administrative order purported to have been passed by the CJI on setting up the Constitution Bench to hear the petition.

Senior lawyer Kapil Sibal told the bench that he would rather withdraw the petition if the court did not want to share details of the administrative order. He argued that the CJI couldn’t pass such an order, as it was a conflict of interest. “We were told in the morning that our matter has been listed before a Constitution Bench. We are only asking as to who passed the administrative order,” Mr Sibal said. “It is grossly illegal, grossly unfair and against the principles of natural justice,” added advocate Prashant Bhushan in support of Mr Sibal’s arguments.

Mr Sibal submitted that since there was no judicial order referring the plea to a five-judge bench, he had to presume there was an administrative order, and he needs a copy of that order to decide the further course of action. “We may or may not challenge the administrative order but we want to know to who passed the order to set up this bench,” Mr Sibal added.

Justice Sikri told Mr Sibal “now that the matter has already been listed, you should argue on merits. What we have before us is only this petition. We don’t have the administrative order, which you are asking. What purpose will be served if we give you a copy of the order? Further, is there any restriction on referring a matter to a five-judge bench?” Mr Sibal, however, insisted that he needed a copy of the administrative order passed on Monday. He asked the court: “What can be so confidential about the administrative order?”

Mr Sikri observed: “That would lead us nowhere. This is an unprecedented situation. You say the CJI to some extent is involved in this petition. But the other four senior judges (who held the press conference) are also involved in some sense. Let us take up the case on merits and decide one way or the other.”

Advocates Ashwini Kumar Upadhyay and R.P. Luthra objected to Mr Sibal appearing for the petitioners on the ground that the Bar Council of India had issued notice to him that he should not appear as he had signed the impeachment motion. But the bench said it couldn’t restrain any lawyer from appearing. Attorney-general K.K Venugopal, who appeared for the Centre, questioned the maintainability of the writ petition filed by two Congress MPs, Pratap Singh Bajwa of Punjab and Dr (Mrs) Amee Harshadray Yajnik of Gujarat, who are signatories to the notice of motion. He submitted that 64 MPs from seven political parties had signed the impeachment notice. “This petition has been filed only by two MPs from the Congress. So I will presume six other political parties have accepted the vice-president’s decision. This petition is not maintainable at all,” the A-G said. Mr Venugopal further said there was nothing wrong even if the CJI has constituted the bench since precedents have made it clear that the CJI is Master of the Roster in all situations.

Mr Sibal, responding to the A-G, said next time he would come with a petition by 60 MPs. “Hope that will satisfy the A-G on the question of maintainability”, he said. Justice Sikri told Mr Sibal the lawyer had begun well by arguing on points of law and the Constitution but by insisting upon who passed this order would indicate “there is something else”. Mr Sibal asked the court “whether by saying who has passed the administrative order and how this petition was listed before the Constitution Bench, will the dignity of the court be in jeopardy. If we cannot be given this much, we don’t see any point in arguing this case further. We will rather withdraw this petition,” said Mr Sibal. The petitioners said they are aggrieved by the impugned order of the Rajya Sabha Chairman, which they said was illegal, arbitrary and violative of Article 14 of the Constitution, and which should be quashed. Referring to the Chairman’s order that “proved misbehaviour” has not been made out as per the petitioners’ own admission, they said a conjoint reading of Article 124(4) & (5), did not contain any provision vesting the Chairman with any quasi-judicial powers, in the process of the removal of a judge of the Supreme Court. They pointed out that the Chairman could not sit and adjudicate over the adequacy, veracity and legal tenability of the allegations/charges contained in the said notice, as this lies within the province of powers of the committee, and the impugned order had not merely encroached but virtually assumed upon itself the role that was statutorily required to be played by the said committee, and that too after due inquiry and following the procedure as prescribed under the Inquiry Act.