SC: Impeachment row not over as Congress questions CJI Misra's 'conduct'

The withdrawal of the petition in the Supreme Court challenging the decision of Vice President M. Venkaiah Naidu to dismiss a notice submitted by opposition MPs for an impeachment motion against Chief Justice of India Dipak Misra brought the proceedings in the matter to an abrupt halt on Tuesday. But it was based on questions about the listing of the matter that was unprecedented in nature. Primarily, it was sought to be asked whether it was legally tenable for the chief justice to list it before a bench.

The main point raised by the petitioners' counsel, senior advocate Kapil Sibal, before the five-judge Constitution Bench was that a reference of a case to five judges can only be made by a judicial order, and that such assigning of cases cannot be done through an administrative decision.

It was argued by Sibal in court that under Article 145(3) of the Constitution, if it appears to the Supreme Court that a substantial question of law as to the interpretation of the Constitution arises in any case, then the minimum number of judges required to adjudicate on that issue is prescribed under the Constitution to be five.

According to the petitioners, the rules of the Supreme Court do not allow the CJI to pass an administrative order to refer a matter to five judges on the ground that a substantial question of law as to the interpretation of the Constitution arises in the case.

The petitioners demanded to know the authority of the official who on the administrative side passed an order to refer the matter to a five-judge Constitution Bench. Sibal, on behalf of the petitioners, demanded that a copy of the order be furnished to them before any proceedings could take place.

“As a litigant, I have a right to be aware of the order—how it was passed... what is the tenor of the order,” said Sibal.

It is also contended by the petitioners that if the order to list the case before the Constitution Bench has been passed by the CJI, they would seek to challenge the order judicially.

The petition, filed by Congress MPs Partap Singh Bajwa and Amee Yajnik, was on Monday mentioned before Justices J. Chelameswar and Sanjay Kishan Kaul. The judges had asked the petitioners to appear before them on Tuesday.

However, on Monday evening, the matter was listed to be heard on Tuesday by a five-judge Constitution Bench comprising Justices A.K. Sikri, S.A. Bobde, N.V. Ramana, Arun Mishra and A.K. Goel.