A petition filed by 2 Congress MPs challenging Rajya Sabha Chairman M Venkaiah Naidu’s decision to reject the impeachment notice against Chief Justice of India Dipak Misra was “dismissed as withdrawn” by the Supreme Court on Tuesday. The congress withdrawn the petition after the Constitution bench refused to give the petitioner details of the administrative order passed in constituting the bench. None of the senior-most judges — Justices Jasti Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Jospeh — who had held the controversial January 12 press conference were part of the Bench.

We filed petition in SC (challenging VP Naidu’s dismissal of impeachment motion against CJI) yesterday & was to be heard today. But we were informed last evening that our petition will be heard by 5 judges. Who gave these orders? What were orders?: Kapil Sibal, Congress to Press

— Legal Desire (@legaldesire) May 8, 2018

Here’s copy of Petition: 

Attorney General KK Venugopal has questioned the maintainability of the petition. “Why have only two Congress MPs come? I will presume only the Congress is aggrieved. Other six parties have accepted (Rajya Sabha Chairman) Venkaiah Naidu’s decision,” he says.

Advocate Prashant Bhushan says it’s unfortunate that the court even refused to share a copy of the administrative order by which the five-judge Constitution Bench was formed to hear the matter. “It has never happened that a writ petition has been brought to a Constitution Bench before a judicial order is passed.”

Sibal, who is also one of the signatories of the impeachment notice, had on Monday mentioned the petition for urgent listing before a bench headed by Justice J Chelameswar. The bench, also comprising Justice SK Kaul, asked Sibal and advocate Prashant Bhushan to mention the matter before the CJI for urgent listing, citing a Constitution bench judgment on powers of master of roster.

Overnight, a five-judge constitution bench in the Supreme Court was constituted by the CJI on Monday to hear the matter on Tuesday. The list of business for the Supreme Court showed that the petition would be heard on Tuesday by a bench comprising Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel.

Significantly, the matter was not listed before the judges who are number two to five in the seniority—Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph—who had held a press conference on January 12 in which they had raised concerns about the independence of the judiciary.

On Tuesday, the the five-judge Constitution Bench headed by Justice AK Sikri did not agree to Sibal’s plea for a copy of the administrative order which led to the bench being set up on Monday, and asked Sibal to argue the main matter challenging Naidu’s order on merits. Sibal argued that the matter could be referred to a Constitution Bench only by a judicial order, and wondered how could it be done by an administrative order, Justice Adarsh Kumar Goel asked if there was a bar on directly referring the matter to a five-judge bench by the latter process.

“You (want) to challenge that (administrative order setting up five-judge bench) for what outcome?” Justice Sikri asked Sibal, who told the bench: “You must say who passed the order. I must have the copy of the order so that I can challenge it.”

The bench reminded Sibal that at the outset of the hearing he had said that he has no personal agenda and was for upholding the dignity of the court. “Will the dignity of the court be jeopardised if you give me that (administrative) order (constituting five judge bench). It is not a secret document under the National Security Act,” Sibal countered.

In the petition, the two MPs claimed that the reasons given were “wholly extraneous” and not legally tenable. While Justice Chelameswar had initially asked him to mention the matter before the CJI, the bench, also comprising Justice SK Kaul, later asked Sibal and Bhushan to “come back tomorrow”. Justice Chelameswar also said he was on the verge of retirement. Making his submissions, Sibal said Naidu cannot summarily reject the notice bearing signatures of 64 MPs and seven former members who had recently retired, on the ground that there was “no proved misbehaviour”.The bench asked Sibal and Bhushan to mention the matter before the Chief Justice of India for urgent listing, citing a Constitution Bench judgment on the powers of master of roster.

Earlier, Vice President rejected the Impeachment Plea in Rajya Sabha.

Naidu said, “I have applied my mind to all five charges made out in Impeachment Motion and examined all annexed documents. All facts as stated in motion don’t make out a case which can lead any reasonable mind to conclude that CJI on these facts can be ever held guilty of misbehaviour.”

“After having perused annexures to the Motion and having detailed consultations and having studied opinions of constitutional experts I am satisfied that admission of this notice of Impeachment Motion is neither desirable nor proper,” he said.

The Vice President had consulted Attorney-General KK Venugopal, former law officer K Parasaran, retired Supreme Court judge Sudarshan Reddy, former Secretary-General of the Lok Sabha Subhash Kashyap, former Law Secretary PK Malhotra and former Legislative Secretary of the Rajya Sabha Sanjay Singh while deciding on the impeachment motion, said news reports.

On April 20, the opposition parties led by Congress moved the impeachment motion in the Rajya Sabha, seeking the removal of CJI Misra under Article 217 read with article 124 (4) of the Constitution of India. The motion was signed by 64 sitting members of the House.

As per Article 124 (4), “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”