New Delhi: The petitions filed by two MPs in the Supreme Court challenging Rajya Sabha chairman M. Venkaiah Naidu’s April 23 decision to reject the impeachment motion against Chief Justice of India Dipak Misra took a dramatic turn this morning. The MPs’ counsel, Kapil Sibal, withdrew the petitions to protest against the setting up of the constitution bench to hear the matter by the CJI, as the master of the roster.
Even as Sibal repeatedly requested the bench to share a copy of the order setting it up, so that he could decide whether to challenge the order first or proceed with the merits of the case, the bench refused to do so, forcing Sibal to withdraw the petitions and face dismissal.
The bench comprising Justices A.K. Sikri, S.A. Bobde, N.V. Ramana, Arun Mishra and Adarsh Kumar Goel was set up late on Monday, apparently by the CJI in his administrative capacity. The petitioners, however, had sought the CJI’s recusal even in his administrative capacity as the master of the roster to list this case, and constitute a bench to hear it, as he cannot be a judge in his own cause.
The CJI’s decision to set up the bench followed Justice J. Chelameswar’s advice to the two petitioners on Monday to mention the matter again on Tuesday for him to take a decision. The petitioner MPs – Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat – and their counsel were taken by surprise when they learnt that a five-judge constitution bench was set up to hear them on Tuesday morning, apparently to preempt Justice Chelameswar’s hearing of the petitioners.
Sibal told the bench that their advocate-on-record was informed by the court’s registry at 10:25 am this morning, five minutes before the beginning of the proceedings before the constitution bench. “We have to prepare. The case is not even admitted. If it is assumed that there is a substantial question of law in this case, which merits its hearing by a constitution bench, then it is deemed to have been admitted,” Sibal said, drawing attention to the fact that the petitions have been just given a diary number, and not even scrutinised by the registry.
Under Article 145 (3) of the constitution, the minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law shall be five. Sibal claimed that this seemed to be the only exception in the history of the Supreme Court when a constitution bench has been set up to hear a matter through an administrative order when all the precedents show that such benches were constituted through judicial orders.
When a bench of fewer than five judges hears an appeal and is satisfied that it involves a substantial question of law, it refers the same for opinion to a bench of five judges, to be constituted for the purpose. The judicial order of the bench explains the issues of reference to the constitution bench. Sibal expressed his surprise that the present bench was constituted without such a judicial order. It is debatable, however, whether this requirement, which applies to appeals against judgments of high courts, is also relevant in the case of writ petitions filed in the Supreme Court.
“Petitioner is entitled to know who, on the administrative side, constituted the bench. If the CJI passed the order (constituting it), the petitioner seeks to challenge that order,” Sibal told the bench. “I have no idea on what grounds this bench has been constituted.”
Justice Sikri, who presided over the bench, observed that the issue is considered of seminal importance and therefore merited hearing by a constitution bench. “It will lead us nowhere,” Justice Sikri said, while responding to Sibal’s plea to share the order setting up the bench, and asked him to argue on the merits of the petitions. Sibal insisted that the court must share the order if only to uphold its dignity.
Attorney General K.K.Venugopal contended that the CJI, on the administrative side, has the discretion to constitute a bench of five judges to hear the case, but did not deal with the question of whether he could have done so when the dismissal of the impeachment motion against him is the subject matter of the petitions.
It is also not clear whether the CJI could invoke the doctrine of necessity to set up a constitution bench, in his administrative capacity, to hear this matter. The doctrine of necessity implies that a judge, who is subject to disqualification on account of bias or conflict of interest, can validly decide the issue if no other person competent to so decide is available. In this case, there were senior judges other than the CJI who could have taken the administrative decision of constituting a bench to hear this case. Therefore, the doctrine of necessity could not have been invoked by the CJI to justify his decision to set up a constitution bench to hear the case, even if he did so following the seniority rule. The CJI appears to have ruled out a hearing by the four senior judges after him, in view of their January 12 press conference wherein they raised issues similar to those raised in the impeachment motion against him.
Interestingly, Venugopal questioned the locus of the petitioners to represent the 64 signatories to the impeachment motion, which was rejected by the Rajya Sabha chairman. His question was whether the remaining 62 signatories accepted the rejection by Naidu. Sibal responded saying if required, he could file their affidavits in defence of the petitions by the two.
But Venugopal’s question raised another one – if a preliminary issue regarding the locus of the petitioners remained unresolved, could the CJI, in his administrative capacity, have gone ahead to set up a constitution bench to hear a “substantive question of law involving interpretation of the constitution” which, in this case, remains unclear?