Congress' CJI impeachment plea pushes SC into uncharted waters

As the Congress on Monday petitioned the Supreme Court challenging the decision of Vice President M. Venkaiah Naidu to dismiss the opposition's notice for an impeachment motion against Chief Justice of India Dipak Misra, the issue that came under focus was the procedure to be followed in listing the petition and also if the chief justice of India could hear it.

Senior advocate Kapil Sibal, who appeared for the petitioners—Congress MPs in the Rajya Sabha Partap Singh Bajwa and Amee Harshadray Yajnik—in the court of Justice J. Chelameswar, sought a judicial view on how the petition, which deals with an impeachment motion against the chief justice, be listed.

Sibal told the court that the petition has been filed, but it has not been numbered so far. “The registrar cannot take orders from the chief justice in this matter,” he said. Explaining the rationale behind the petitioners approaching the bench headed by Chelameswar, the senior lawyer said, “For 45 years, the practice has been that the listing of a matter that the CJI cannot or is unable to determine has to be decided by the second senior-most judge.”

Chelameswar referred to the Prasad Medical Education Trust matter, which he had listed before a larger bench and where the decision got struck down swiftly and forcefully by the chief justice, who emphasised upon the chief justice's authority as master of the roster. Sibal countered, “That case was different... There was no motion against the chief justice therein... How will the present matter be heard? When will it be heard? Who is to decide who the bench shall compose of?”

The petitioners sought a judicial view of the matter, so that in the future, the course of action is clear. “We are only concerned with the listing... Your lordships may not pass any orders,” Sibal said.

Earlier, the Congress, when declaring its intent to move the Supreme Court against Naidu's decision to dismiss the opposition notice on impeachment of Misra, had stated that it expected that the chief justice would not be involved with the petition either in its listing or its hearing.

It is an unprecedented situation in which a petition that deals with an impeachment motion against the chief justice of India has been moved in the Supreme Court, leading to a debate on how the top court can deal with its listing and hearing.

A view expressed by legal experts is that the chief justice cannot hear the petition himself since it deals with an impeachment motion proposed against him.

“No judge can be a judge in his own cause. This is according to the principles of natural justice,” said senior Supreme Court advocate Mahalakshmi Pavani.

However, another view is that the four Supreme Court judges who held the press conference cannot hear the petition since the notice for an impeachment motion is based on their unprecedented media briefing, which was held in January this year.

Shivaji Jadhav, who is president of the Supreme Court Advocates-on-Record Association, said that since it would not be proper for the matter to be heard by the chief justice, it has to be mentioned before the next senior-most judge in the court. However, complicating matters is the possible argument that the number two judge in the Supreme Court may also find it difficult to hear the matter since he would be a direct beneficiary of an impeachment motion against the chief justice.

“The full court may have to decide on the petition,” he said.

The bench comprising Justices Chelameswar and Sanjay Kishan Kaul has asked the petitioners' lawyer to appear before it again on Tuesday. All eyes are now on the two judges as they deal with the unprecedented situation.