CJI Impeachment: Withdrawing Plea Against Rejection a Clever Move

Kapil Sibal’s decision is astute because it keeps the case alive, while also making the CJI seem compromised.

On Tuesday, 8 May, the petition filed by two Congress MPs against Vice-President Venkaiah Naidu’s rejection of the motion to impeach CJI Dipak Misra, was withdrawn by their lawyer, Kapil Sibal. As a result, the case stands dismissed by the Supreme Court, although there has been no adjudication or assessment of the validity of the Rajya Sabha Chairman’s decision.

This may seem like a loss for Sibal and the Opposition MPs who had wanted to impeach the Chief Justice of India, but is actually quite a clever move, considering the circumstances.

But why was the case withdrawn? And why is this good strategy?

Why Did Sibal Withdraw the Case?

Abuse of Power Charge

One of the charges in the notice of motion to impeach the CJI was an allegation of abuse of his powers to decide which judges hear which cases. This charge echoed the concerns raised by the four senior judges at their press conference on 12 January about how the Chief Justice was assigning sensitive cases.

In November 2017, CJI Misra had headed a Constitution Bench, which affirmed his status as the ‘Master of the Roster’ – the only judge who has the power to decide which judges would hear cases at the Supreme Court, even in matters which might potentially be related to the CJI himself.

Since this petition relates to actual charges of misbehaviour against the CJI, the petitioners didn’t want the CJI to either hear the case, or even decide which judges would hear it. Sibal had therefore mentioned the case on Monday in the courtroom of Justice Jasti Chelameswar, the senior-most judge of the apex court after the Chief Justice.

Who Decided Which Judges Would Hear the Case?

Justice Chelameswar had asked the petitioners to return on Tuesday morning, when he was to take a call on whether to admit the petition and decide before which judges the case would be listed.

However, on Monday evening, the Supreme Court causelist indicated that the petition was going to be heard by a five-judge Constitution Bench headed by Justice AK Sikri. The said bench included neither Justice Chelameswar, nor any of the other senior-most judges of the apex court.

As a result, when the matter came up for hearing on Tuesday, Sibal asked to know how the Constitution Bench was set up to hear this case. These special benches of the Supreme Court are normally set up to hear significant constitutional cases after a reference under Article 145(3) of the Constitution – a reference which needs to be made by some sort of order. Moreover, Sibal wanted to know how had such an order been passed when the case hadn’t even been admitted?

The issue here was clear: had the CJI made the decision to refer the matter to a Constitution Bench? Was it the CJI who had decided which judges would assess Venkaiah Naidu’s rejection of the impeachment motion? If this was what had happened, Sibal said they would challenge it.

The Court refused to give an answer to the lawyer, and instead told him to argue the merits of his case. This was why Sibal decided to withdraw the case, since he was being denied the opportunity to decide whether or not to challenge the constitution of the bench before him.

Why is This Good Strategy?

The move to withdraw the case is an extremely astute one. If the case had proceeded and Sibal had argued on merits, then whatever decision was taken by the five judges here would have been final. If they’d held that Venkaiah Naidu had been entitled to reject the impeachment motion and had done so correctly, that would have been that, and no further challenges to the Rajya Sabha chairman’s decision would have been entertained.

This is, of course, exactly what happened in the Judge Loya case, where the decision of the Supreme Court not only said that no investigation would be carried out into his death, but also declared that he died a natural death. While a review can be asked for a decision like this, the chances of getting it overturned are almost nil.

By withdrawing the case at this stage, Sibal ensured that there was no adjudication on the correctness of Naidu’s order, which leaves the option open to challenge it again. Given that the impeachment motion argues that the CJI is abusing his power by allocating sensitive cases to particular judges, it would make little sense for the case which will decide the fate of that motion to be decided by judges selected by the CJI himself.

This is not just about whether or not those judges would have passed an order unfavourable to Sibal and the Congress (though they would hardly have been heartened by the presence of Justices Arun Mishra and AK Goel, both of whom are connected to the charges in the impeachment motion). It is also a question of propriety, since the petition involves such serious charges against the Chief Justice.

By taking the stance that they have, the Congress have not only been able to keep their case alive, they have also won the game of perception. The court’s refusal to say how the bench was set up looks like a confirmation that the Chief Justice himself decided its constitution. It also looks bad that such a decision would be taken even though Justice Chelameswar had told the petitioners to return to his own court the next day.

What Happens Now?

The most obvious thing to do is to file a fresh petition against Naidu’s decision, once again arguing that he should not have rejected the impeachment motion. Again, this should be mentioned before Justice Chelameswar, as he’s the senior-most judge after the CJI. This time, however, the petitioners should ask Justice Chelameswar to decide whether to list or refer the matter on the day itself, rather than wait till the next day.

Of course, this isn’t a battle purely in the courts anymore, this is a battle in public perception as well. The Congress and Sibal will want to play up how this whole fiasco is proof of the Bharatiya Janata Party’s attempts to undermine the judiciary, and every decision of the CJI is helping strengthen that perception. Today’s proceedings make CJI Misra look utterly compromised, regardless of whether or not you agree with the charges in the impeachment motion.

At the end of the day, even if the petition was successful, and the impeachment motion admitted in the Rajya Sabha, it is impossible for the whole impeachment process to be completed before CJI Misra’s retirement in October. This is now a statement of intent by the Opposition, and a way to argue against the propriety of the CJI hearing and possibly deciding some of the major cases before the SC at present, including the Babri Masjid case.

As a result, we should certainly expect them to file a fresh petition sometime soon (especially if they want Justice Chelameswar to hear it, as he will be effectively retiring when the Supreme Court vacations begin on 19 May). In a sense, however, the petition was never about actually getting Naidu’s decision overturned, it was always about trying to prove that the CJI was compromised.

And despite having withdrawn the petition today, it seems like the Opposition has actually succeeded.

(The Quint is now on WhatsApp. To receive handpicked stories on topics you care about, subscribe to our WhatsApp services. Just go to TheQuint.com/WhatsApp and hit Send.)