Cong MPs withdraw plea on CJI removal

‘NO TRANSPARENCY’ Question formation of SC bench via administrative order

NEWDELHI: Two Congress lawmakers, represented by lawyer and party leader Kapil Sibal, withdrew their petition challenging Rajya Sabha chairman Venkaiah Naidu’s rejection of a notice for a motion seeking removal of the Chief Justice of India, on a day of high drama in the apex court.

The lawmakers on Tuesday questioned the process by which a five-judge Constitution bench had been set up to hear their appeal -- through an administrative order, presumably issued by the Chief Justice, and not a judicial reference -- and seemed to hint at impropriety in the CJI constituting a bench to hear an appeal involving his future.

The lawmakers said they would prefer to challenge the administrative order first than argue the merits of the case, and irked at the bench’s reluctance to share the order with them, withdrew their appeal.

Political analysts said the Congress may have achieved its objective of keeping the issue alive despite withdrawing the appeal, and the court, by refusing to share the administrative order, had only muddied the waters.

“The petition is dismissed as withdrawn,” said the bench headed by Justice AK Sikri after hearing the petitioners’ counsel, senior advocate Sibal and Attorney General KK Venugopal who appeared for the Rajya Sabha chairman.

The bench acknowledged the situation was unprecedented but declined to share details of the order.

Petitions are rarely listed directly before a Constitution bench.

They are first heard by a regular bench of two judges and then referred by it to the Chief Justice for constituting an appropriate bench.

Still, as mentioned by Venugopal during the proceedings in the court on Tuesday, there is a precedent that suggests otherwise.

A 2005 judgment in the case of Central Board of Dawoodi Bohra Community versus State of Maharashtra , held that the Chief Justice of India could place any matter for hearing before any particular bench of any strength.

Former attorney general Soli Sorabjee said there was “nothing wrong in the decision of the Chief Justice of India , and there is no bias in the five judges who listened to case”, while eminent jurist Fali Nariman said in a TV interview, “I am extraordinarily sad... bench fixation has to be by the Chief Justice because in a series of cases right from 1980s it has been held it does not require any rules. As long as a person is CJI, he/she becomes entitled to fix the bench.”

Senior advocate Sanjay Hedge, however, said the matter was in uncharted territory.

“Constitutionally speaking, we are in a virgin territory. Anything that is done or not done would constitute a precedent. Any reference to the Constitution bench is invariably by a judicial order after a hearing in the court. A petition is normally never placed directly before a Constitution bench. In this matter, given the nature of the petition, the Chief Justice may have wanted to avoid embarrassment to the five senior most judges constituting the collegium and that’s what sent it to the next five.”

Finance minister Arun Jaitley, a lawyer himself, accused the Congress of bench hunting and dragging the matter to the court.

He wrote in an article, “The rulings of the Chair on whether to admit a motion or otherwise, are not subject to judicial review.”

“But wanting to fish in troubled waters, the Congress conceived of a strategy to chose a court of its choice for mentioning for constitution of the bench to hear the matter so that an unarguable matter could be arguable before a more receptive court. The Congress party was looking for a friendly pitch to bowl on,” he wrote.

The appeal was filed on Monday and the petition mentioned before justices Jasti Chelameswar and Sanjay Kishan Kaul. Sibal insisted the judges list the matter, keeping in view that it involved the Chief Justice. He argued that the Chief Justice was disabled from taking a decision on the administrative side. Even as the bench asked Sibal to come back on Tuesday morning, a circular posted on the Supreme Court’s official website on late Monday evening showed the matter as listed before a five-judge bench headed by Justice Sikri.

None of four senior-most judges of the court after the Chief Justice were part of the bench. In January, these four judges had publicly aired their grievances against the style of functioning of the Chief Justice. Judges six to ten (as Supreme Court judges are referred to in legal circles based on their seniority) , Justices SA Bobde, NV Ramana, Arun Mishra and AK Goel are part of the bench.

On Tuesday, Sibal said: “We want to see who has passed this (administrative) order because we may challenge that order. We don’t want the CJI to be involved with this matter at all since the proposed impeachment motion is against him. Or let this court declare it once and for all that this is an administrative order which can never be challenged.”

The bench tried to convince Sibal to argue on the merits of the case since the matter has already been listed but he refused to relent. Justice Sikri also sought to convince Sibal on the constitution of the bench. “This is an unprecedented situation. You say CJI to some extent is involved in this petition. But the other four most senior judges (who held the press conference) are also involved in some sense.”

Explaining the decision to withdraw the petition challenging the Rajya Sabha chairman’s authority to reject the motion for the removal of the CJI, Sibal said, “The petitioners are entitled to know the authority who on the administrative side passed an order to refer this matter to five distinguished judges. If the authority happens to be the Chief Justice... then the petitioners are entitled to be informed of the order and contend that the copy of the order be furnished to the petitioners before any proceedings take place.”

He added, “We want to know who passed the order. We want a copy of the order... It is not an order under the Official Secrets Act.. This is our constitutional right. We will then decide whether to challenge it or not.

Every order in this country, of the PMO, of the executive, of any public authority, can be challenged. Is this the only order which cannot be challenged?”

The Congress leader, who is seen as the driving force behind both the Opposition move to give a notice for a motion on the removal of the CJI as well as the legal challenge, added, “This is the first time in the history of the court that someone has passed an order on the administrative side and we don’t know who it is.”

Advocate Prashant Bhushan on Tuesday filed an RTI seeking details of the order passed by the CJI referring the case to a bench of five judges.