CJI Impeachment: Day 1 Arguments

8th May, 2018

On 23rd April, the Rajya Sabha Chairman Mr. Venkiah Naidu rejected the motion to impeach CJI Dipak Misra. This decision of the Rajya Sabha Chairman was challenged before a 5 judge Constitution bench comprising of Justices A.K. Sikri, A Bobde, NV Ramana, Arun Mishra and A.K. Goel.

At the outset, Attorney General K.K. Venugopal raised an objection to the appearance of Mr. Kapil Sibal as he was one of the key players in moving the impeachment motion. Mr. Sibal clarified that he is challenging the Rajya Sabha Chairman’s rejection of the impeachment motion and not the impeachment itself.

Mr. Sibal observed that two salutary principles of judicial process must be respected in this case. First, the court should uphold the dignity and independence of the judiciary and not do anything which diminishes the confidence of the people in this institution. Second, the procees of decision making should not generate suspicion regarding any procedural irregularities. He added that he stood before the bench without any malice or agenda but with the expectation that these salutary principles would be complied with.

Mr. Sibal argued that there is no doubt that the CJI is the ‘master of the roster’ but this power is not all-encompassing. He enquired about the nature of recourse if this power is exercised in an untrammelled manner. The ‘master of roster’ is not the end but beginning of the dialogue and exercising absolute power over case listing harms the dignity of the institution. In this context, the challenge to the order of the master of roster (CJI Dipak Misra) referring the matter to a 5 judge bench should be allowed.

While the primary issue was judicial review of an impeachment motion, Mr. Sibal challenged the very constitution of the bench. Hence the bench proceeded to consider if the CJI had the right to constitute this bench.  Justice A.K. Sikri queried if the suggestion was that the bench should not have been constituted. Mr. Sibal responded that he wanted to access a copy of the administrative order under which this bench had been constituted. He would decide on challenging  the order only after knowing who constituted this bench. As under Article 145 of the Constitution, matters could be referred to a 5 judge bench only by a judicial order and not an administrative order. If this bench has been constituted by CJI’s order, then the petitioner would not proceed on the merits of the case but would challenge the order.

Justice A.K. Sikri pressed upon the possible grounds on which the order could be challenged. He asked specifically if the ground was that the Constitution Bench should not have been constituted by the CJI. Mr. Sibal replied that there are several grounds but that could only be decided once the petitioners had access to the order. He informed the bench that he was intimated the previous night about today’s listing. The matter had neither been numbered nor listed but a Constitutional bench had been formed.

Mr. Venugopal intervened to suggest that a Constitutional Bench could be formed to decide if CJI’s authority to form a Constitution Bench was an administrative or a judicial function. Mr. Venugopal opined that the formation of a Constitution Bench was an administrative function of the CJI. He further objected to the petition by the two aggrieved MPs to challenge the order of the Chairman of the Rajya Sabha without the authorisation from the other 69 MPs who had signed on the impeachment motion.

Justice A.K. Sikri asked Mr. Sibal to proceed with the arguments on the merits. Mr Sibal refused to argue on merits of the case and instead withdrew the petition on the ground that there is no clarity on who had constituted the bench.

(The Report relies on contributions from Ms. Ashrutha Rai)