Court refused to say who referred case to 5-judge bench: Sibal

Congress leader Kapil Sibal on Tuesday said he withdrew a petition against Rajya Sabha Chairman M. Venkaiah Naidu's rejection of an impeachment motion against Supreme Court Chief Justice Dipak Misra as the case had been referred to a five-judge bench without following the due process.

Sibal said that the petition had not been transferred to the constitution bench through a "judicial order".

"We wanted to know who passed the order that our petition would be heard by a five-judge bench. Normally, reference to such a bench is made by a judicial order.

"But there is no judicial order here. So, who passed the order and under what circumstances? It is an administrative order and not a judicial order," Sibal told the media at the Congress headquarters here.

He said the Supreme Court rules did not allow the Chief Justice to pass an administrative order to refer a matter to a five-judge bench on the ground that a "substantial question of law as to the interpretation of the Constitution arises in the case".

Sibal said: "As a litigant, I have a right to know what is that order, who has passed it, in what circumstances and what is the tenor of that order."

The constitution bench excludes the five senior-most judges of the apex court -- four of whom had raised their voice against the Chief Justice -- and was formed late on Monday to hear the plea on Tuesday.

"If such an order has been passed by the Chief Justice, although the petition pertains to his own impeachment, then we should be given a copy of the order, as we are entitled to it, so that we can study it.

"They (bench) did not answer our question and asked us to argue on the merits of the case. We told them we could not argue the case until we got a copy of the order. So, we withdrew the petition," he added.

Raising more questions, Sibal said: "In the present case, there is no judicial order formulating the substantial question of law, involving the interpretation of the Constitution, which is required to be adjudicated upon by a constitution bench.

"The petitioners are entitled to know the authority who on the administrative side passed an order to refer this matter to five distinguished judges."

On Monday, Congress MPs Pratap Singh Bajwa and Amee Yajnik had filed the petition, alleging that Vice President and Rajya Sabha Chairperson Naidu's decision to reject the motion was politically motivated.

Sibal also demanded to know if there was "any order by any constitutional authority in India" that could not be challenged in the Supreme Court.

"We submitted if their lordships felt that the Rajya Sabha Chairman's decision is something that cannot be challenged, then they should tell us as much," said Sibal, who appeared for the two Congress MPs.

On April 20, members from seven opposition parties led by the Congress submitted a notice to Chairman Naidu to initiate impeachment proceedings against Chief Justice Misra on five counts of "misbehaviour".

Naidu rejected the notice three days later.

Sibal said the Congress did not have a personal grievance against any judge but was raising the matter for the sake of restoring the "dignity and independence" of the judiciary.

He pointed out that it was a few senior judges of the Supreme Court and not the Congress who flagged the issue that everything was not right with the apex court.

He also said it is not a political issue. "This is not politics. These are individual member's right. So, any individual member can challenge it."

--IANS

sid/nir