CJI Misra shouldn’t have constituted five-judge bench to hear impeachment petition : MANEESH CHHIBBER
| 09 May 2018

Law settled by seven-judge bench in 1969 underlines that being a judge in one’s own case is a circumstance which is “abhorrent to our concept of justice”.

One may not agree with the decision of two Congress MPs to approach the Supreme Court after Vice-President and Rajya Sabha Chairman Venkaiah Naidu rejected the impeachment motion moved by 71 opposition MPs against Chief Justice of India (CJI) Dipak Misra. But senior advocate and Congress MP Kapil Sibal could have been legally correct in taking objection to the “overnight constitution of a five-judge bench” to hear the case.

While Sibal did, what many feel, was a tactical retreat, which would ensure that the onus to come clean remained on the CJI, the happenings in the top court Monday and Tuesday only added to the damage already done to the institution of the judiciary.

Certainly, many eyebrows were raised Monday evening when news came in about CJI Dipak Misra himself constituting a five-judge bench to hear the petition. The question of whether the CJI should have intervened at all will possibly remain unanswered. After all, the matter at hand related to him.
When it allowed Sibal to withdraw the petition, the five-judge bench also let go of a chance to finally settle the issue of the powers of the CJI as Master of the Roster.

One question that merits a response from a Constitution bench is: Can a CJI who is at the centre of an impeachment debate and against whom a requisite number of MPs have moved an impeachment motion, use his powers as ‘master of the roster’ to constitute benches to hear matters that directly concern him?

Under the Constitution and rules framed by the Supreme Court itself, the CJI doesn’t seem to have any power to set up a Constitution bench on the administrative side – even the much-maligned and allegedly abused in recent times ‘master of the roster’ system doesn’t empower him to do so.
Under Article 145(3) of the Constitution of India, the power to constitute a Constitution bench is vested in the Supreme Court on the judicial side.

Article 143(3), which deals with the subject, reads: “The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

According to this, if a bench of, let us say, two or three judges feels a matter being heard by them involves a significant question of law that requires interpretation of the Constitution, then that bench can refer the matter to a larger bench of not less than five judges. This larger bench is the Constitution bench.

It isn’t as if the CJI is completely barred – under the administrative side – from forming a Constitution bench. However, as per the Supreme Court’s own Handbook on Practice and Procedure and Office Procedure under the Supreme Court Rules, 2013, this power of the CJI comes into play when there is a reference made to the Supreme Court on the judicial side.
But, a five-judge decision in Central Board of Dawoodi Bohra Community versus State Of Maharashtra (2004), which dealt extensively with the issue of Constitution benches and who can refer matters to them, granted that the rules “do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength”.

However, since every case has to be decided on its own merit and judgments, even if by Constitution benches, can’t be read without context, one also has to consider another judgment – this one delivered by a seven-judge bench almost 35 years before the Dawoodi Bohra judgment.
In its landmark judgment of 1969 in A.K. Kraipak and others versus vs Union Of India, a seven-judge bench ruled that even if there is a “reasonable likelihood of bias”, a person in authority can’t be part of the proceedings, even if they are mere administrative proceedings.

The same judgment also talks of the concept of a person being a judge in his own case. “…To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice,” the judgment reads.

Source : the print . in dated 9/5/2018