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Posted at: May 7, 2018, 11:48 AM; last updated: May 7, 2018, 10:22 PM (IST)

2 Cong MPs move SC challenging rejection of notice against CJI

Five-judge Constitution Bench to hear it on Tuesday; judges who held press conference against CJI Misra kept out
2 Cong MPs move SC challenging rejection of notice against CJI
Chief Justice Dipak Misra. PTI/file

Satya Prakash

Tibune News Service

New Delhi, May 7

The issue of removal of Chief Justice of India Dipak Misra on Monday reached the Supreme Court with two Congress MPs filing a petition against rejection of the unprecedented removal notice against the CJI by Rajya Sabha Chairman M Venkaiah Naidu.

It has been listed for hearing on Tuesday before a Constitution Bench of Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel, who are number 6 to 10 in seniority among the top court judges.

The four senior-most judges - Justices J Chelameswar, Ranjan Gogoi, Madan B Lkur and Kurian Joseph - who had held a press conference against the CJI on January 12 have apparently been kept out of this all-important Bench that will hear this unprecedented petition.

However, it was not clear as to who constituted the Bench.

The petition filed by Congress MPs Partap Singh Bajwa and Amee Harshadray Yajnik claimed the reasons given in the rejection order by Naidu were "wholly extraneous" and not legally tenable.

Earlier in the day, senior advocate Kapil Sibal and advocate Prashant Bhushan mentioned the matter for urgent listing before a Bench headed by Justice Chelameswar, number two in the list of seniority of top court judges.

In view of Constitution Bench verdicts declaring CJI as the "Master of Roster", the Bench initially asked the two noted lawyers to mention it before the CJI himself but agreed to take it up on Tuesday after Sibal pointed out that the CJI could not be a judge in his own cause. "Come back tomorrow," said the Bench which also included Justice Sanjay Kishan Kaul.

After considering the material contained in the notice of removal motion and the inputs received in his interaction with legal luminaries and constitutional experts, the Rajya Sabha Chairman had rejected the notice of the motion for removal of the CJI.

"I am of the firm opinion that the notice of the motion does not deserve to be admitted. Accordingly, I refuse to admit notice of motion," Naidu had said in a speaking order.

"I have applied my mind to all five charges made out in impeachment motion and examined all annexed documents. All facts as stated in motion don't make out a case which can lead any reasonable mind to conclude that CJI on these facts can be ever held guilty of misbehaviour," the Rajya Sabha Chairman had said.

But the petitioner MPs contended 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 Judges' Inquiry Act. The charges in the notice of motion were "extremely serious" and merited "a full-fledged inquiry to test their veracity".

Sibal said the Rajya Sabha Chairman could not have summarily rejected the notice bearing signatures of 64 MPs by saying there was "no proved misbehaviour".

Bhushan said as per Supreme Court Rules, the CJI was disabled to pass any order in this matter either on the judicial side or on the administrative side. "Only the senior-most judge can decide on the listing of this petition which has sought quashing of the order of the Rajya Sabha Chairman," he said.

"There is 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," Justice Chelameswar told Sibal but agreed to take up the matter on Tuesday after a brief huddle with Justice Kaul.

A five-judge constitution bench of the apex court had in November last ruled that the CJI was the "Master of Roster".

As Sibal pleaded for urgent listing, Justice Chelameswar -- who is due to retire on June 22 -- said, "I have only few more days here. I am on the verge of my retirement."

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

As Sibal objected to recent circulars asking lawyers to mention urgent matters before a Registrar, Justice Kaul said it was not that 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 his master of roster powers to the Registrar," said Sibal.

In a related development, another Bench headed by Justice AK Sikri refused to restrain MPs and the media from publicly discussing the issue of CJI's removal and posted a PIL on the matter for hearing in July.

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