File pic of Supreme Court of India

In a dramatic twist, senior lawyer and Congress leader Kapil Sibal today withdrew the petition filed by two Rajya Sabha MPs contesting Rajya Sabha Chairman Venkaiah Naidu’s decision to reject the impeachment motion against CJI Dipak Misra. As the Constitutional bench met today to take up the plea of the Congress MPs, Sibal questioned the order for setting up a five-judge Constitutional bench to hear the plea. The petition was filed on Monday by Congress Rajya Sabha MPs – Partap Singh Bajwa (Punjab) and Amee Harshadray Yajnik (Gujarat).

The lawyer also demanded a detailed copy of CJI Dipak Misra’s order yesterday to set up a Constitutional bench where no representation was given to the four ‘rebel’ senior-most judges of the top court. Sibal argued that CJI Dipak Misra was not in authority to set up a Constitutional bench as the impeachment notice of the opposition was moved against him.

To this, the SC bench refused to share the administrative copy of the order and noted that everything is unprecedented in the matter and why not argue first on the merits.

Speaking to reporters outside the court, senior advocate Prashant Bhushan who appeared for the petitioners said that the matter was mentioned before the court number 2 yesterday. The court said that it will look into the matter and asked us to come tomorrow (Tuesday). But the registrar in the evening mentioned the matter has been listed before the court number 6.

“Sibal who was appearing for the (Congress) MPs, said how this matter could have come to be to listed before a Constitutional bench. He said that it has never happened before. We need to know if the CJI has passed the order, we need to know on what ground the bench was set up. He (Sibal) said that we will challenge the order if the bench was set up by the CJI by exercising his power of the master of roster. The bench unfortunately said they wouldn’t like to go into this and share the copy of the administrative order and told him to argue on the merits. Sibal then said that if you are not ready to share copy of the administrative order, allow us to withdraw the petition. The court then allowed to withdraw the petition.”

Attorney General KK Venugopal, who was also present inside the courtroom, argued that the motion was signed by 64 opposition MPs but the plea to challenge the Rajya Sabha Chairman’s rejection decision was filed by only two MPs of one party. The AG submitted that six other parties, which had given a notice for impeachment, did not move the top court. When the AG questioned the maintainability of the petition on this ground, Sibal said that next time he will come with a petition by 60 MPs.

After a 45-minute hearing, the five-judge bench headed by Justice AK Sikri declared the petition as dismissed as withdrawn, PTI reported.

Addressing the media later, Sibal said that the Supreme Court can’t pass an administrative order and a Constitutional bench can only be set up through a judicial order. “It was not a judicial order, but an administrative one…the petitioners have the right to know who passed the order…we wanted a copy of the order…they (the SC) did not pass any order saying that they will give us the copy of the order or not and asked us to argue on the merits,” he said.

Sibal noted that there is no order in India that can’t be challenged. He said that if there is an order that can’t be contested, the court should say ‘this one order can’t be challenged’. “We want a copy of the order that posted the plea before a Constitutional bench,” he said, adding that we can’t argue further without reading the order.

Sibal also clarified that the Congress party is committed to protecting the dignity and independence of the court. “The allegations levelled against the Congress by the government… that we are politicising it, we ask them where is politics in this?” He said that it is a judicial matter and not political.

“Which order in India cannot be challenged…We just want to say that we want to protect the dignity, independence of courts…transparency in the judicial process…so, the issue we have raised is not political, but one relating to the (developments in) courts,” he said.