CJI Dipak Misra sets up bench to hear Congress plea on rejection of motion seeking his removal
The Chief Justice of India, Dipak Misra, has constituted a bench of five judges to hear a challenge from two Congress Rajya Sabha members of Parliament against Vice President Venkaiah Naidu’s rejection of a notice of a motion seeking his (the Chief Justice’s) removal.
The bench doesn’t include the four senior-most judges of the court after Justice Misra; these judges had publicly aired in January their grievances over how the Chief Justice was running the court and allocating cases.
The five-judge bench is led by Justice AK Sikri and has Justices SA Bobde, NV Ramana, Arun Mishra and AK Goel on it.
On Monday, belying reports that the Congress think-tank was divided on challenging the Vice President’s April 23 rejection of the notice moved by the Congress and six other opposition parties on the grounds of “misbehaviour”, Pratap Singh Bajwa and Amee Yagnik argued in their plea 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.
Senior advocate Kapil Sibal (also a senior Congress leader and widely seen as the moving force behind the notice) and lawyer Prashant Bhushan mentioned the petition before a bench of justices J Chelameswar and Sanjay Kishan Kaul for an early hearing. The judges, who initially declined to entertain the plea, asked the lawyers to come back on Tuesday morning.
“Why don’t you mention before the Chief Justice of India?” Justice Kaul asked Sibal, who responded by saying that the registry has not given a number for the petition. “You can go and tell the CJI that your petition is not being numbered,” Justice Kaul replied. When Sibal said their plea was a simple one, Justice Kaul said: “It’s not so simple.”
Sibal said Bhushan asserted that the CJI was “disabled” from even issuing orders on the administrative side to list the petition since it was against him. Sibal complained that he was, for the first time in 45 years of his practice, witnessing a departure from the rules.
Sibal was hinting at the CJI’s administrative order that stopped mentioning of urgent matters before Justice Chelameswar in case the CJI was unavailable to hear them. The decades-old practice halted abruptly following an order by Justice Chelameswar’s bench in November 2017 to list a PIL demanding a court-monitored probe into the matter involving Prasad Education Trust. The trust ran a medical college that was barred from admitting students by the Medical Council of India. The trust appealed the order in the Allahabad high court and the Supreme Court (where it was heard by Justice Misra). Meanwhile, the Central Bureau of Investigation started looking into whether there had been efforts to influence the judiciary. A day after Justice Chelameswar’s order, a constitution bench led by CJI Misra virtually set aside the order and held that CJI is the “master of the roster” and that no one, other than him, could mark cases on the administrative side.
On April 23, Sibal had termed Naidu’s order as “unprecedented, illegal, ill-advised and hasty” and asserted that the party would challenge it in the Supreme Court.
He said at the time that he also hoped that the Chief Justice would have “nothing to do” with the petition when it came up for listing in the court. As the master of the roster, it is the chief justice who assigns cases.
The rejection of the notice had a precedent nearly five decades ago when a Supreme Court judge faced such a bid for the first time.
Besides challenging the decision of the Rajya Sabha Chairperson, the petition also assails Section 3(1) of the Judges Inquiry Act for vesting discretion with the Rajya Sabha Chairperson to reject a notice of motion for removal. The petition calls Naidu’s decision ex facie “illegal” and contrary to constitutional provisions.
“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,” read the petition.
The chairman, it said, should have referred the motion to the committee after ensuring that it has signatures of 50 members of Rajya Sabha. “The chairman cannot sit and adjudicate over the adequacy, veracity and legal tenability of the allegations/charges contained in the said Notice.”
The petition alleged the chairman’s order was based on political considerations and questioned the circumstances under which Naidu claimed to have taken legal opinion to come to a conclusion that the allegations against CJI Misra were baseless.
The process of removing a judge of the Supreme Court is lengthy. Depending on which house it is in, the chairman or the speaker has to decide whether to admit it and, if it is admitted, constitute a three-member committee to investigate the charges. If the committee finds the judge to be guilty, the house can take up the motion for consideration.
Once the House in which it is originally admitted passes it with a special majority, it goes to the other House, which has to pass it with a special majority as well. An address is presented to the President for removal of the judge, who then passes an order. CJI Misra retires in October.