The Congress today shelved the move to get Chief Justice of India Dipak Misra impeached by withdrawing a petition filed by two party MPs challenging the rejection of the motion by the Rajya Sabha Chairman N Venkaiah Naidu.
Senior Congress leader and Supreme Court advocate Kapil Sibal took serious exception to the formation of a five-judge Constitution Bench to hear the petition by an administrative order by the CJI when he was under the line of fire.
Appearing before the bench, Sibal said normally a case was referred to a Constitution bench by a judicial order, that is by a two-judge bench.. For the first time, this had been done by an administrative order. He demanded who passed the order constituting the five-judge bench when the CJI, though the master of the roster, should have recused himself as the case was against him
The bench, headed by Justice A K Sikri rejected his demand for a copy of the administrative order and wanted him to argue the case on merit. Kapil Sibal, however, said he would not proceed with the case unless he knew how the bench came to be constituted. Upon this, the bench allowed him to withdraw his petition and passed an order,"dismissed as withdrawn".
Attorney General K K Venugopal told the bench that only two Congress MPs had filed a petition challenging the Rajya Sabha Chairman's ruling when 60 MPs had signed the impeachment motion. Rejecting it as an absurd argument, Sibal said if need be, he could implead all the 60 Congress MPs
Chief Justice Misra formed the Constitution bench with judges in order of seniority from the sixth as the first four seniormost judges had come out in the open with serious allegations about his manner of functioning.
Even so, Sibal argued that the CJI should have refrained judicial work until the disposal of the petition. However other legal luminaries have said that the Rajya Sabha Chairman has rejected the motion at the very outset as devoid of merit. and therefore there is no bar on Misra continuing to discharge his duties.
The two Congress MPs in their petition had said the Rajya Sabha Chairman had no power to decide the issue himself and he should have referred the charges for enquiry by a three-member committee as mandated by the Judges Inquiry Act. They also sought a direction to the Rajya Sabha Chairman to admit the impeachment motion and refer it to a committee to go into the charges against Justice Dipak Misra.
Since Sibal has withdrawn the petition, he is free to file a fresh petition challenging the Rajya Sabha Chairman's order .
Sibal on Monday mentioned the matter before Justice J Chelameswar, one of the four seniormost judges who revolted against the CJI. Both Sibal and Prashant Bhushan told the bench of Chelameshwar and Sanjay Kishan Kaul that they cannot mention it before the CJI for listing as the impeachment motion is against him. He now cannot even direct the registrar when and where to list this matter, they contended..
Justice Chelameshwar however said:"We are not sure. Rules are not conclusive any more". Justice Kaul said the matter of listing the petition was not so simple.
The constitution of a five-judge Constitution bench today came as a surprise to Sibal and he wanted this issue to be settled before going into the merits of the petition against the Rajya Sabha Chairman's ruling against impeachment of Justice Misra.