New Delhi: It is intriguing how the Constitution Bench has been set up to hear a petition by Congress MPs for initiating impeachment proceedings against Chief Justice of India Dipak Misra.
And this question dominated proceedings during the hearing on Tuesday.
Sources told CNN-News18 that it is upon the orders of CJI Dipak Misra that the five-judge bench has been set up. And there was no consultation with the other four most senior judges in the collegium before a decision in this regard.
They add that a constitution bench cannot be set up but on the orders of the CJI and that it is beyond the authority of the registrar concerned to list the matter directly before the constitution bench.
It is clear from the petition that Congress MPs Partap Singh Bajwa and Amee H Yajnik have raised questions on interpretation of the constitutional provisions and thus, this could have been referred to a five-judge bench under Article 145(3).
But the contention remains that how can a constitution bench be set up without a judicial order? The convention on the judicial side has been that a case is first listed before a two-judge or a three-judge bench before it is referred to a larger bench by issuing an appropriate judicial order. Here, in this case, we have no such order.
The other issue would be whether it was decided on the administrative side that this petition ought to be heard by a constitution bench.
Who decided it then?
The CJI, being the 'master of roster', has the exclusive authority to take a call on listing of cases and setting up of constitution bench.
Thus, the primary question by the petitioners are expected to be if the CJI exercised his authority as the 'master of roster' and set up this bench.
The petitioners' lawyer Kapil Sibal may even want to see the order by which the case has been referred to the constitution bench since he has already sought recusal of the CJI from this case both on the administrative as well as on the judicial side.
The petitioners may even decide to challenge the order under which the larger bench has been set up.
The first hearing of this never-before petition, therefore, is expected to question the manner in which the constitution bench has been set up, more so when Sibal had mentioned this matter before Justice J Chelameswar a day ago and he was called back on Tuesday. The sudden listing of the case before the larger bench even before Justice Chelameswar could decide will certainly be raised too.
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