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Looking to keep the sword of a removal motion dangling over CJI Dipak Misra, Congress MPs on Monday challenged rejection of the motion in the Supreme Court and sought an urgent hearing from Justice J Chelameswar, who had recently led senior judges in holding presser against the CJI.
Acting swiftly, the CJI constituted a five-judge bench of Justices A K Sikri, S A Bobde, N V Ramana, Arun Mishra and A K Goel which will hear the petition jointly filed by Congress’s Rajya Sabha MPs Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat at 10.30am on Tuesday. Interestingly, the five-judge bench headed by the CJI which has continuously heard petitions challenging Congress MP for months, will not assemble on Tuesday. The bench headed by Justice Sikri, which will hear the petition, includes none of the senior judges — Justices Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — who held an unprecedented press conference on January 12 to accuse the CJI of arbitrarily allocating important cases to “select benches headed by junior judges”.
The cases the judges referred to included a petition seeking a probe into the death of Judge B H Loya, who was presiding over the Sohrabuddin Sheikh encounter trial where BJP chief Amit Shah was an accused. Shah was discharged in the case. Subsequently, Congress submitted a removal motion against the CJI in Rajya Sabha while the government said the move was intended to intimidate the judiciary. The challenge to Vice-President and Rajya Sabha chairman M Venkaiah Naidu’s decision to reject the motion was mentioned before a bench of Justices Chelameswar and Sanjay Kishan Kaul in dramatic fashion on Monday.
Senior advocate Kapil Sibal and lawyer Prashant Bhushan requested the bench at 10.30am, barely 10 minutes after the petition was filed in the SC, for an urgent hearing. The bench said it would give its decision on listing on Tuesday morning, which now stands pre-empted with the CJI setting up a five-judge bench headed by Justice Sikri and listing the petition before it.
Picking holes in Naidu’s April 23 order rejecting the removal notice, Sibal said the decision was ex-facie illegal and unconstitutional as the chairman had no option but to refer the allegations against the CJI for a probe by a three-member inquiry committee under the Judges Inquiry Act.
“The chairman has no option but to set up the inquiry committee against the CJI once the notice for removal motion was signed by the requisite number of MPs, which in case of RS is 50,” said the petition, which was settled by Sibal and filed through advocate Sunil Fernandes.

In his order, Naidu had said the motion did not meet the requirement of “proved misconduct” and lacked “substantial and verifiable” evidence of wrongdoing and that opposition MPs were themselves unsure as reflected by their use of phrases like “may have been” and “appears to have” while stating their case. Sibal said the RS chairman erroneously concluded that the notice of motion did not give proof of the five counts of alleged misconduct. The proof was a matter of inquiry and the chairman could not have shut the inquiry in contravention of Article 124(4) and 124(5) of the Constitution, which provide the procedure for removal of an SC judge or CJI.

“This petition raises serious questions of immense constitutional importance for today and future,” Sibal said and kept persuading Justices Chelameswar and Kaul to order listing of the petition. Faced with Justice Chelameswar’s initial reluctance, Sibal said, “I am aware that the CJI is the master of roster and that petitions need to be mentioned before him for urgent listing. But this petition is against the CJI, who cannot decide its listing. The SC registrar also cannot decide listing of a petition against the CJI. That is why we are before you.” The CJI is disabled from hearing this case. I have practised in this court for the last 45 years and the procedure is that whenever there is a petition against the CJI, it is mentioned before the bench headed by the senior-most SC judge. Let us not depart from that procedure.”


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