Hours after the matter was mentioned before a bench headed by the second-most senior judge of the apex court, Justice J. S. Chelameswar on Tuesday, the matter was referred to be heard by a Constitution bench headed by Justice A. K. Sikri.
Following the move, the senior advocate acting for the two MPs, Kapil Sibal, asked for a copy of the order by virtue of which the matter had been listed before a Constitution bench.
“We wish to know whether the matter was referred to a Constitution bench on the basis of an administrative or a judicial order. I don’t know on what grounds it has been referred to a Constitution bench," he said.
“Once we have the order, we will decide if we wish to challenge it," he added. Sibal withdrew the case after the Constitution bench expressed reluctance to go into the matter.
Meanwhile, finance minister Arun Jaitley, in an article released by the Bharatiya Janata Party (BJP) on Tuesday, called the impeachment motion “wholly misconceived".
“It is poorly drafted and lacked in substance. Many of its traditional allies were not willing to take on this confrontation with the judicial institutions. If the motion for impeachment was unsustainable, the writ petition challenging the order of the Chairman, Rajya Sabha, was unarguable....The rulings of the Chair on whether to admit a motion or otherwise, are not subject to judicial review," Jaitley wrote.
Rajya Sabha chairman M. Venkaiah Naidu Naidu on 23 April rejected the impeachment motion moved by Congress-led opposition parties on 20 April, holding that it lacked substantial merit.
The two petitioners, Partap Singh Bajwa and Amee Harshadray Yagnik, who are signatories to the impeachment motion, wanted a judges’ inquiry committee to be formed to hear the charges against Misra and the rejection of the impeachment notice as being ex facie “illegal and arbitrary of Article 14 (equality under law) of the Constitution of India."
The petitioners argued that it is not the Rajya Sabha chairman’s prerogative to adjudicate over whether there has been any abuse by the CJI of his power as the master of the roster, as this is the job of an inquiry committee. By holding this charge as untenable, the order goes into an impermissible arena of quasi-judicial determination of the charge which is impermissible and illegal, they added.
Seeking the rejection order to be set aside, the MPs claimed that only one of the charges—relating to the CJI’s powers as master of the roster —was discussed in detail and that it does not even attempt to discuss the rest of the charges, failing which it is not possible to return any findings.
It was also stated that if Naidu’s order were to be accepted as legally correct, it would be tantamount to having a two- stage adjudicatory process with regard to a notice of motion filed under the Judges (Inquiry) Act, 1968. This interpretation is “wholly perverse, and violative not only Article 124(4) & (5) of the Constitution of India but also the Judges (Inquiry) Act, 1968", it was added.
“The impugned order, in a ‘cavalier, cryptic and abrupt manner’, shockingly holds that none of the other charges are made out without disclosing as to on what basis was this finding returned", the petition said.
Arguing that the charges made in the notice of motion were extremely serious, the two MPs sought that their veracity be tested through a full-fledged inquiry and not be adjudicated in “a whimsical manner" as Naidu’s order sought to do.
Allegations against Misra include involvement in a conspiracy to pay bribes in relation to a medical admission scam, dealing with a case in which he was likely to fall under the scope of an investigation, antedating an administrative order and abuse of administrative power in allocating cases in the Supreme Court.
He is also embroiled in a land allotment case in Odisha where the lease of land allotted to him was cancelled by the state government owing to irregularities in an affidavit.
Section 124(4) of the Constitution outlines the process of impeachment of the CJI on the ground of “proven misbehaviour or incapacity". It holds that a Supreme Court judge can only be removed from office on the basis of an order of the president after it has been addressed by both houses of Parliament and supported by a majority of not less than two-thirds of the members of that house.