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CJI Impeachment: How the hearing progressed in the Supreme Court

Murali Krishnan

Court room 6 of the Supreme Court was privy to a gripping hearing today in the case concerning impeachment of Chief Justice of India Dipak Misra, though it ended on a soft note with the petitioner withdrawing the petition.

Appearing before a Bench of Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel, Senior Advocate Kapil Sibal sought details of the administrative order by which the matter was placed before the Constitution Bench.

The Bench refused to provide the same or comment on it, instead asking Sibal to argue on merits. Sibal then proceeded to withdraw the petition.

Senior Advocate Kapil Sibal and advocates Prashant Bhushan and Sunil Fenrnandes appeared for the petitioners.

Attorney General KK Venugopal appeared for the Rajya Sabha Chairperson, while Additional Solicitor General Tushar Mehta appeared for the Central government.

Here’s how today’s hearing transpired.

Kapil Sibal

At the outset Sibal, made it clear that he would argue on certain basic principles of law before going into the merits of the case.

He then began his arguments by stating that there are two basic principles underlying judicial process.

“1. To uphold dignity of the court. We should not do anything which impinges on the dignity of the court.

2. The process of law must be untainted and unadulterated. Decision making must be such that there is no suspicion at any point. Your Lordships and we (lawyers) have to ensure the same. 

Sibal stated that the petitioners have no animus or agenda, before making his submissions on why the details of the administrative order constituting the Constitution Bench should be provided to the petitioners.

Sibal said that while the Chief Justice of India is the Master of Roster, whether that power is untrammelled needs to be decided.

“We have no doubt CJI is master of roster. We are not challenging that. But is that power untrammelled? Is it subject to any guidelines?”, asked Sibal.

Sibal’s case was that if the Constitutional obligation requires the CJI to exercise the powers unchecked and the Court holds it so, that will only be the beginning of the dialogue and not the end of it.

He submitted that if the Court holds that administrative decisions by CJI cannot be challenged, then this will be the only order in the Constitutional framework which cannot be challenged.

Sibal then delved into the manner of listing of the petition. He argued that this might be the first instance of a matter going before a Constitution Bench by way of an administrative order.

“This is the first time a matter is referred to Constitution Bench by an administrative order. All such orders in the past have been judicial orders.”

The Bench then quizzed Sibal.

“Is there a rule that the CJI has to place the matter before a Bench of a particular strength?”, asked Justice AK Goel.

“Are you stating that this case should first go before a Division Bench?”, Justice Sikri asked.

Sibal responded by saying that he was not. However, he insisted that details of the administrative order be provided to the petitioner so that they can decide whether to challenge it or not.

“What I want to tell Your Lordships is to give me details of that order so that I can look at it and decide whether to challenge it or not. Petitioners are entitled to know who passed the order. If the order has been passed by CJI, the petitioner seeks to challenge that order.”

“What would be the implications of such challenge?”, asked Justice Sikri.

“We don’t know. Unless we see the order, we wont know”, said Sibal.

Sibal then objected to the manner in which case was placed before the Constitution Bench.

“The matter is not numbered or listed and suddenly a Constitution Bench is formed. Is this the way?”, he said.

“Is there a bar on matters being listed directly before CJI?”, asked Justice Sikri.

“Yes, subject to the facts of the case”, responded Sibal.

Attorney General KK Venugopal

Venugopal placed heavy reliance on the judgment in Dawoodi Bohra v. State of Maharashtra to argue that the CJI can place matters before a Constitution Bench.

He also cited the fact that only two of the 60+ MPs who signed the notice of motion have approached the Supreme Court.

“What if the other MPs have accepted the decision of the Chairperson? So my proposal is that at least 50 per cent of them should challenge it”, said Venugopal.

Sibal then responded to Venugopal’s arguments.

“I am not challenging the Bohra principle. That is the correct principle, but on the judicial side.

Justice Arun Mishra then cited the order passed by Justice Chelameswar placing a petition before a Constitution Bench.

“That was a judicial order. Not an administrative order”, Sibal responded.

My argument is can the administrative order of CJI be challenged in court? If it can be, then give me that order, if not then Your Lordships should state it.”

Responding to Attorney General’s submission that at least 50 percent of the MPs who moved the impeachment motion should approach Supreme Court, Sibal said that the submission has no basis in law.

“I will get 60 signatures, if that is what you want. Will you accept it then?”, Sibal asked the Attorney General.

The Bench

The  Bench asked Sibal if any application has been filed praying for obtaining administrative order.

“How can I? The matter was listed yesterday night after the Registry closed and it was listed for today first thing in the morning. I will file a formal application Your Lordships”, Sibal responded.

The Bench was, however, adamant on asking Sibal to argue on the merits of the case.

“This is not going to lead us anywhere. You argue on merits, we will hear you”, said Justice Sikri.

Sibal then said that he will withdraw the petition, which the Court allowed.

Read the note submitted by Kapil Sibal and the Order passed by the court. 

Note-by-Kapil-Sibal.pdf
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Partap-singh-Bajwa-v.-Chairman-Rajya-Sabha.pdf
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