SC allowed the petition to be withdrawn after senior advocate Kapil Sibal took objection to the ‘overnight constitution of a five-judge bench’ to hear the case.
New Delhi: The Supreme Court Tuesday allowed two Congress MPs, who had challenged Vice-President Venkaiah Naidu’s rejection of the impeachment motion against Chief Justice of India Dipak Misra, to “withdraw their plea”.
The new twist in the case came after senior advocate and Congress leader Kapil Sibal took objection to the “overnight constitution of a five-judge bench” to hear the case.
“Please share the administrative order under which this bench was constituted and we will decide if we accept it or challenge it. That’s our prerogative,” he said.
Sibal objected to the CJI allotting the case to a five-judge bench like a “routine matter”.
“How can a case be referred to a five-judge bench through an administrative order? Show us the order which says so,” Sibal asked the court.
The court declined to share the order but observed that since the CJI cannot pick the bench, the registry might have to take a call on who will be part of the bench to hear the case.
Attorney general K.K. Venugopal also objected to the petition to challenge Naidu’s decision. He said that only two MPs cannot challenge the decision against a motion that was sought to be moved by at least 50 MPs.
To this, Sibal retorted that he will “come back with briefs from 60 MPs soon”.
The court, however, did not go into the merits of the case.
Two of the 71 MPs who signed the motion — Partap Singh Bajwa and Amee Harshadray Yajnik — had moved the Supreme Court Monday. Sibal, appearing for the petitioners, sought an urgent hearing before justices J. Chelameswar and Sanjay Kishan Kaul.
Chelameswar was initially reluctant to constitute a bench himself, as the CJI has repeatedly insisted that since he is the master of the roster, only he has the power to constitute benches. However, he asked Sibal to come back the next day.
In spite of that order, within hours, CJI Misra constituted a five-judge bench of judges who are 6th-10th in seniority to hear the case.
The reason he mentioned the case before Chelameswar’s bench was made clear by Sibal himself, who told the court that since the case relates to CJI Misra, he couldn’t mention it before the CJI to demand a date of hearing.
Sibal told ThePrint after the hearing that a call will be taken on when a fresh petition will be filed.
Usually, a case is referred to a constitution bench through a judicial order. This means that a judge can refer the case to a larger bench after framing specific questions that have to be considered.
But last night, the bench was set up through an administrative order.