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CJI impeachment row: Advocates Gautam Bhatia, Nikhil Mehra spar on Twitter over petition hearing

Advocates Gautam Bhatia and Nikhil Mehra had quite a spat on Twitter, on Tuesday afternoon, following the Supreme Court's dismissal of Congress MPs' impeachment petition against Chief Justice of India (CJI) Dipak Misra. 

The social media argument happened soon after the Congress on Tuesday questioned the setting up of a five-judge bench to hear the petition and dismissed allegations that the plea, filed by two party MPs, was "political". At 10.30 am when the matter was taken up in the apex court, Sibal, appearing for the petitioners, said, the matter was listed before 5-judge bench through an administrative order and the CJI can't pass such orders in this matter.  

File image of Supreme Court. Reuters

File image of Supreme Court. Reuters

He also asked who passed the order for setting up the 5-judge bench. When the bench said they would not like to go into this question or provide a copy of the order, Sibal said if they are not given a copy of the order, then they should be allowed to withdraw the petition. Earlier, Justice Chelameswar (JC), before whom the petition of the two Congress MPs was mentioned, had expressed reservation in attending the hearing of the matter.

The Twitter thread began when Mehra tweeted on Tuesday afternoon, "Every time Sibal and the like have gone bench shopping, the CJI has had a riposte. Today's was perfectly executed by the CJI. Past actions much more questionable. Gone are the times, people used to wait for retirements and roster changes to file matters. Now they want an excuse."

To this, Bhatia replied, "Wait. Are you actually defending the CJI constituting a bench to hear this case, and then the bench refusing to provide a copy of the order that set it up? That's not "perfect execution", it's just a trampling of principles of natural justice."

Mehra said, "You have a right to the administrative order setting up the bench? And wouldn't JC's presence on any bench even determining the setting up of an appropriate CB also suffer the sake natural justice problem? This is what ill-advised press conferences do. Compromise everyone."

Bhatia: You do in this case, because if the authority that passes the admin order is the CJI, there is an immediate ground for challenge. And an unanswerable challenge at that. This is the third time that CJI is throwing PNJ to the winds, and institutionally, there's nothing more +

Mehra: Who gets to decide this bench, Gautam? In whose hands is natural justice safe?

Bhatia: In my view, the case has to be placed before No. 6, and No. 6 has to send it to a division bench for admission.

Mehra: For admission? You're joking, right? Can this be dismissed in limine? Even the issue of justiciability is a CB issue.

Bhatia: Then let a division bench make that referral order.

Mehra: Based on what rule? Or are rules and conventions being created as we go along? You had 5 of the next senior most judges. This entire petition is as legally flawed as the impeachment motion. Just more abuse of the court through more politics.

Bhatia: Huh? Article 145(3) clearly contemplates that constitution benches are created through referral orders. Admission hearings are always before DBs (Division Benches).

The CJI can't select the bench to hear a case pertaining to his own impeachment, even if he selects Solomon. Chanting "master of the roster" doesn't change that fact. It's a foundational principle of the rule of law.

Mehra: It is quite obvious he made no selection. He and the others in the Collegium look coloured. He went to the next 5. Petitioners don't get to cherry pick. This isn't so much an exercise of Master of the Roster as the only logical way out.

Bhatia: His selection consists in (a) The decision to set up a constitution bench (b) The decision to list it for admission before a constitution bench (c) The decision to list it today He can't take any of those decisions, regardless of how substantively justified they may be.

Mehra: Which of these are substantive decisions? Why don't petitioners just cherry pick their benches? If anything JC did the right thing yesterday. He knew he can't pick the bench. This is a matter of urgency, no? Would the petitioners' be happy were this decided post-retirement?

Bhatia: The size of the bench and the composition of the bench are both substantive questions. And I'm not on the conduct of the petitioners. I'm on the conduct of the CJI, and I'm not even going to the merits of his conduct. I'm on the simple issue of disqualification to take the call.

Mehra: The composition of the bench is never a substantive question. He set up a CB for a constitutional question. A CB of the next 5 senior most. There's no actual selection.

Bhatia: Composition of a bench in a Court of 20+ members is always a substantive question. My point is that the moment the petition involved his impeachment, he lost the authority to take any decision on it. Natural justice requires it.

Mehra: I disagree. Actually, you do too but you're not seeing it. Who would have appointed the beloved DB that was needed to pass a referral order. Also the Petitioners should have argued 145(3) before this bench - that they're establishment bypasses known constitutional process.

Bhatia: No. 6 should have. By all accounts, KS began with arguing that - but to argue that you need to first have the order constituting the bench, which the bench refused to give him. So.

Mehra: Why does he need the order for they argument? His point simply had to be referral is only by a judicial order under 145(3). Can't be by an administrative order. All he needed was acknowledgment of the fact that the appointment was by administrative order.

Bhatia: There are two separate points. The first is on whether judicial or administrative. The second is that if administrative, which authority.

Mehra: If administrative there can only be one authority. Already clarified sometime last month :-)

Bhatia: Anyway, closing with my view on what the (only) correct process was here. (1) Mentioning before No. 6 as the senior-most non-conflicted judge. (2) No. 6 lists before a DB of his choosing for admission. (3) Said DB hears it and passes a referral order if 145(3) is satisfied.

(4) Papers placed before No. 6 who decides composition of bench. Finis.

In another extension of the conversation, Chartered Accountant Rishabh Agarwal made the following tweet after Bhatia said "Admission hearings are always before DBs."

Agarwal: Wrong interpretation. What you are talking about is a proviso which allows referral of a matter to a Constitution bench while an appeal is being heard. It's an option provided for appeals already being heard. Prior hearing before a bench is not a compulsory condition.

Bhatia: Okay no, I was wrong. The power, in this case, seems to flow from Ch. V(3)(III) --

The Twitter thread has been taken exactly as posted by Bhatia and Mehra through their respective Twitter handles @gautambhatia88 and @Tweetinderkaul. Gautam Bhatia is known to have worked closely with Senior Counsel Arvind Datar in a significant role in getting the right to privacy declared as a Fundamental Right. Advocate Mehra primarily practises in Supreme Court and Delhi High Court.

Updated Date: May 08, 2018 17:45 PM

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