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The petition filed by two Members of Parliament, Partap Singh Bajwa and Amee Yajnik, was mentioned before Justice Jasti Chelameswar today by Senior Advocate Kapil Sibal and advocate Prashant Bhushan.
Justice Chelameswar asked the petitioners to “come back tomorrow”.
Besides challenging the decision of Rajya Sabha Chairperson, the petition filed through advocate Sunil Fernandes also assails Section 3(1) of the Judges Inquiry Act insofar as it vests discretion with the Rajya Sabha Chairperson to reject a notice of motion for removal.
The primary ground for challenge is that Naidu’s decision is ex facie illegal and contrary to the mandate of Articles 124(4) and 124(5) of the Constitution and the provisions of the Judges Inquiry Act.
The petition notes that only one of the charges levelled against CJI Dipak Misra have been discussed in detail by Naidu, that of the master of roster power.
“…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 Charge No.5 which is impermissible and illegal.”
Further, it is stated that the order passed by Naidu proceeds on an erroneous assumption that the Chairman is vested with quasi-judicial powers to determine whether or not such a motion ought to be admitted.
“The Chairman/Speaker has to ensure that the signatures of 50 Members of the Rajya Sabha/100 members of the Lok Sabha as the case maybe, is in order and consequently refer the same to the Committee as contemplated under Section 3(2). The Chairman cannot sit and adjudicate over the adequacy, veracity and legal tenability of the allegations/charges contained in the said Notice.”
As regards the vires of Section 3(1) of the Judges Inquiry Act, the petition presumes that the Chairman has relied on the following para:
“may after consulting such persons, if any, as he thinks fit, and after considering such materials, if any, as maybe available to him, either admit the motion, or refuse to admit the same.”
It is contended that this provision pertains to the genuineness and authenticity of the signatures to the Notice of Motion, and cannot extend to going into the merits of the motion. Therefore, it has been prayed,
“this Hon‘ble Court, may either strike down, the afore excerpted provisions of Section 3(1) of the Inquiry Act or read it down, or harmoniously construe, Section 3(1), Inquiry Act to mean that once the Chairman/Speaker has satisfied himself that the appropriate number of the Parliamentarians has signed the Notice of Motion, then he has to necessarily refer it to the said Committee for adjudication on merits, and the Chairman/Speaker would have no further role to play and definitely cannot deal with the said Notice of Motion as has been dealt, in the Impugned Order.”
The petition claims that if the contrary were the case, it would effectively be a two-step adjudicatory process, which was never the legislative intent.
Another point made in the petition is that Naidu had quoted extensively on the minority judgment in M Krishna Swami v. Union of India to buttress his point. This in itself, the petition claims, renders Naidu’s order untenable.
The circumstances under which Naidu claimed to have met legal luminaries in order to come to the conclusion that the allegations against CJI Misra were baseless, have also been called into question.
“the Motion was presented on 20.04.2018 and the impugned order was passed on 23.04.2018 at around 9.30 a.m. From the reports which are in public domain, the Hon‘ble Chairman was not in New Delhi for a good part of the weekend of 21st and 22nd April, 2018. In these circumstances, to say that he had consulted legal luminaries, constitutional experts, former Secretary Generals, former Law Officers, Law Commission Members and eminent Jurists and also had personal conversations with them does not appear to be probable.”
It further alleges that the Chairman’s order was based on political considerations.
“…rejection seems to be motivated by political consideration beyond the constitutional scheme which is buttressed by the fact that one of the charges against the Chief Justice is that he has been partial in assigning political sensitive cases pertaining to the ruling party before particular benches of this Hon‘ble Court in order to get a predetermined outcome.”
On these grounds, among others, it has been prayed that Naidu’s order rejecting the motion for removal of CJI Misra be set aside. It has also been prayed that Section 3(1) of the Judges Inquiry Act be read down, and that the Court issued an order directing the Chairman to expeditiously refer the charges highlighted in the motion to an Inquiry Committee.
Read the petition: