Court refuses to give details of the administrative order that led to setting up of a constitutional bench to hear the matter
New Delhi: In a tactical retreat, two Congress MPs withdrew their petition challenging Rajya Sabha Chairman M. Venkaiah Naidu’s rejection of an impeachment motion against Supreme Court Chief Justice Dipak Misra on Tuesday after the court refused to give details of the administrative order that led to setting up of a constitutional bench to hear the matter.
Appearing for the MPs, senior counsel Kapil Sibal withdrew the petition after the five-judge Constitution Bench headed by Justice A.K. Sikri asked him to argue the main matter challenging Naidu’s order on merits while expressing its refusal on the constitution of the bench.
“We wanted to know who passed the order that our petition would be heard by a five-judge bench. Normally, reference to such a bench is made by a judicial order. But there is no judicial order here. So who passed the order”, Sibal, one of the signatories to the impeachment motion, told reporters after withdrawing the petition.
In the court, while Sibal wanted the copy of the order to challenge it on the grounds that the matter could be referred to a Constitution Bench only by a judicial order and not by an administrative order, Justice Adarsh Kumar Goel, part of the bench, asked if there was a bar on directly referring the matter to a five-judge bench by the latter process.
The bench, also comprising Justice S.A. Bobde, Justice N.V. Ramana and Justice Arun Mishra, reminded Sibal that at the outset of the hearing he had said he had no personal agenda and was for upholding the dignity of the court.
“Will the dignity of the court be jeopardised if you give me that (administrative) order (constituting five judge bench). It is not a secret document under the National Security Act,” Sibal countered.
Attorney General K.K. Venugopal, appearing for the Rajya Sabha Chairman, said the Chief Justice had discretionary powers on the administrative side to allocate any matter to any bench of whatever strength.
Sibal later told the media that Supreme Court rules do not allow the Chief Justice to pass an administrative order to refer a matter to a five-judge bench on the ground that a “substantial question of law as to the interpretation of the Constitution arises in the case”.
The Constitution Bench excludes the five senior-most judges of the apex court — four of whom had raised their voice against Chief Justice Misra — and was formed late on Monday to hear the plea on Tuesday.
“If such an order has been passed by the Chief Justice, although the petition pertains to his own impeachment, then we should be given a copy of the order, as we are entitled to it, so that we can study it,” he said.
On Monday, Rajya Sabha members Pratap Singh Bajwa and Amee Yajnik had moved the top court alleging Chairman Naidu’s rejection in April of the notice of motion seeking the removal of Chief Justice Misra was politically motivated.
On April 20, members from seven opposition parties led by the Congress submitted a notice to Chairman Naidu to initiate impeachment proceedings against Chief Justice Misra on five counts of “misbehaviour”. Naidu rejected the notice three days later.
Sibal said the Congress did not have a personal grievance against any judge but was raising the matter for the sake of restoring the “dignity and independence” of the judiciary.
He pointed out that it were a few senior judges of the Supreme Court and not the Congress who flagged the issue that everything was not right with the apex court.