Kapil Sibal asked the five-judge Constitutional bench of the Supreme Court to provide the petitioners with a copy of the order to set up a bench to hear their plea challenging Venkaiah Naidu's decision to reject the opposition's impeachment motion.
A five-judge bench of the Supreme Court today dismissed a petition by two Rajya Sabha Congress MPs today after they withdrew their petition challenging Upper house Chairman Venkaiah Naidu’s decision to quash the opposition’s impeachment motion against Chief Justice of India (CJI) Dipak Misra. Senior lawyer Kapil Sibal who was representing the two Congress MPs Partap Singh Bajwa and Amee Harshadyay Yajnik, asked the five-judge Constitutional bench to provide the petitioners with a copy of the order to set up a bench to hear the matter.
He argued that the decision to set up a Constitutional bench was taken without following the due process. He said that on Monday, he had mentioned tha plea before the Court number 2 of Justice Chelameswar who initially referred the matter to the CJI-headed bench but later asked him to come tomorrow (Tuesday). However, the matter was listed before the court number 6 before it came up for hearing, Sibal alleged.
Sibal noted that if the order to set up a Constitutional bench was passed by the court, it would have been uploaded on the court’s website. But, he said, since it was not an order passed by the court, “we demanded to know who passed the order”. He said that if the Chief Justice of India has passed an order, petitioners should be given a copy of the order. “It is our Constitutional right to know who passed the order. If we are provided with a copy of the order, we will decide whether to challenge it or not,” Sibal, who himself is a signatory to the impeachment notice, told reporters.
“How can we begin our argument without seeing a copy of the order?” he questioned the five-judge SC bench headed by Justice AK Sikri, the sixth senior-most judge in the Supreme Court.
Here are the 7 questions that Kapil Sibal asked the bench that also comprises Justice SA Bobde, Justice NV Ramana, Justice Arun Mishra and Justice AK Goel:
1. Under Article 145(3) of the Constitution, if it appears to the SC that a substantial question of law as to the interpretation arises in any case, a minimum number of judges in a case prescribed under the Constitution is five. Sibal said that the matter came up for hearing today but it was referred to the five judges before that.
2. Sibal said that the reference of the case to 5 judges can only be made by a judicial order. The rules of SC don’t allow the CJI to pass any administrative order to refer a matter to 5 judges, he contended.
3. In the present case, there is no judicial order formulating the substantial question of the law, involving the interpretation of the Constitution, which is required to be heard by a Constitution bench.
4. It is assumed that since petitioners are not privy to any such order, the authority took a decision that the issues raised in the petition required to be heard by a 5 distinguished judges. Sibal said that the petitioners are entitled to know the authority on the administrative side that passed an order to refer the matter to the 5 distinguished judges.
5. Sibal argued that if the authority happens to be the CJI, the petitioners are entitled to be informed of the order and content that copy of the order be furnished to the petitioners before any proceeding takes place.
6. Sibal said that if the order constituting the bench was passed by the CJI, then the petitioners seek to challenge the order.
7. Sibal said that till the time the petitioners are now provided with a copy of the order to set up a Constitutional bench, it would be inappropriate for the petitioners to seek an indulgence of the court, implying that the case would not be fought on its merits until the petitioners have access to the order on setting up the bench to hear the Congress leaders’ petition.
On Monday, Partap Singh Bajwa and Amee Harshadyay Yajnik had moved the Supreme Court challenging Rajya Sabha Chairman Venkaiah Naidu’s decision to reject the impeachment motion against CJI Dipak Misra. The two told the court that once the petition is signed by the requisite number of MPs, the Chairman has no option but to set up an inquiry committee to probe allegations levelled against the CJI.
On April 23, Venkaiah Naidu had dismissed the opposition parties’ impeachment motion on grounds that it lacked substantial merit and was based on assumption rather than factual proof. The impeachment motion was signed 64 MPs.