'Come back to us tomorrow': SC to Sibal and Bhushan challenging rejection of impeachment notice against CJI

Two Congress MPs today moved the Supreme Court challenging the rejection of the impeachment notice against Chief Justice of India Dipak Misra by the Rajya Sabha Chairman, claiming that the reasons given were "wholly extraneous" and not legally tenable.

Senior advocate Kapil Sibal, who was one of the signatories of the impeachment notice in Rajya Sabha, mentioned the matter for urgent listing before a bench headed by Justice J Chelameswar, the senior-most after CJI Misra.

While Justice Chelameswar initially asked him to mention the matter before the CJI, the bench, also comprising Justice S K Kaul, later asked Sibal and advocate Prashant Bhushan to "come back tomorrow". Justice Chelameswar also said he was on the verge of retirement.

Making his submissions, Sibal said Rajya Sabha chairman M Venkaiah Naidu cannot summarily reject the notice bearing signatures of 64 MPs and seven former members who had recently retired, on the ground that there was "no proved misbehaviour".

The bench asked Sibal and Bhushan to mention the matter before the Chief Justice of India for urgent listing by citing a constitution bench judgment on the powers of master of roster.Justice Chelameswar, who was initially reluctant to order listing of the petition said "there was a five-judge constitution bench verdict on powers of master of roster. It would be appropriate if you mention the matter in court number-1 before the bench of Chief Justice".

However after the submissions, Justice Chelameswar and Justice Kaul went into a huddle and asked Sibal and Bhushan to come tomorrow so they could take a call on the issue. "You come back tomorrow. We will see", the bench said.

The two leaders, who have filed the petition are Rajya Sabha Congress MPs Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat.At the outset during nearly 20-minute hearing, Sibal said he was aware of the constitution bench judgment on the master of roster and added that since the impeachment notice concerned the CJI, the senior-most judge of the apex court can only order for urgent listing of the petition.

A five-judge constitution bench of the apex court had on November 10 last year categorically stated that the Chief Justice of India was the "master of the roster"."I am aware of the procedure but it can't be mentioned anywhere else. A person cannot be a judge in his own cause. I am just asking for urgent listing and not seeking any interim relief," Sibal said.

He said the CJI cannot order for listing and hence the senior-most judge of the court must pass some orders as it was a matter of constitutional importance.

"Please decide on listing the petition. It is not about whether we are mentioning it before Justice Chelameswar or someone else but about the convention," Sibal said.

To this, Justice Chelameswar replied, "As far as I'm concerned, I've only few more days here. I am on the verge of my retirement".Sibal said this kind of situation has not arisen before and the court should pass an order on who would deal with the matter and how it would be dealt with.

"This petition raises constitutional question of importance. How do you deal with this situation? Who has the power? Lordships will have to clarify. You have to consider this. I understand that CJI has the power to direct for listing but this case is against master of roster", he said.

Justice Kaul observed that it will be appropriate if the matter is mentioned before the bench headed by CJI and asked Sibal whether the petition has been numbered.Sibal, who had settled the petition of the two MPs, said they have filed the plea, but the apex court registry has not yet given any number to it.

He said "the procedure of this court is very simple. I have practised in this court for past 45 years. The Registrar can't take orders from the CJI in this matter. The CJI can't delegate its master of roster powers to the Registrar".Justice Kaul replied, "It's not that simple". 

Sibal, while insisting for urgent listing of the petition said, "All I am asking is Justice Chelameswar should consider passing order and nothing else." Bhushan said according to the SC rules, the CJI is disabled to pass any order in this matter either on the judicial side or in the administrative side.

"Only the senior-most judge can decide on the listing of the petition, which had sought quashing of the order of Vice President and Rajya Sabha (RS) Chairman Venkaiah Naidu," he said.Naidu had on April 23 rejected the notice, given by seven opposition parties led by the Congress for impeachment of the CJI on five grounds of "misbehaviour".

This was the first time that an impeachment notice was filed against a sitting CJI.

The petition filed by the MPs through advocate Sunil Fernandes alleged that the charges contained in the notice of motion were extremely serious and called for a full fledged inquiry.

It also said the reasons given by the Rajya Sabha chairman while rejecting the impeachment notice were "not legally tenable" and deserved to be set aside for being "wholly extraneous" and ultra vires the provisions of the Constitution and the Inquiry Act.

It sought setting aside of the Chairman's order terming the charges contained in the notice of motion are "extremely serious" and merit "a full-fledged inquiry to test their veracity.