New Delhi: Congress MPs, led by Senior Supreme Court advocate and Congress leader Kapil Sibal, this morning withdrew their petition from Supreme Court (SC) challenging Vice-President and Rajya Sabha Chairman Venkaiah Naidu’s decision rejecting the notice of removal motion against Chief Justice of India Dipak Misra.

They withdrew the petition after the Court refused to provide them a copy of the order on formation of the Bench to hear the plea. The MPs had questioned the listing of their petition before a five-Judge Constitution Bench soon after they filed it yesterday.

The petition was filed by two Congress Rajya Sabha MPs —Pratap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat — challenging the Vice-President’s decision to nix the bid to impeach the Chief Justice. A five-Judge Bench of Justices A.K. Sikri, S.A. Bobde, N.V. Ramana, Arun K. Mishra and Adarsh K. Goel dismissed the petition as withdrawn.

It is not clear who formed the Bench — Misra, being the Chief Justice and Master of the Roster, decides which cases are heard by which Judges. In this case, however, the petition directly involves the Chief Justice himself. None of the five senior-most Judges of the SC are on the Constitution Bench. Four of them had made allegations against Misra in a press conference in January. Naturally there is conflict of interest here.

“Never before has a petition been referred to a five-Judge Bench immediately on filing and by an administrative order,” Kapil Sibal, appearing for the petitioners, said. “If Your Lordships say that we may not challenge the order, then this order shall be the only order without a challenge in the history of the Constitution.”

Sibal’s appearance for the two Congress MPs was objected by two advocates, R.P. Luthra and Ashwini Upadhyay, who said the Bar Council of India prohibits those advocate-politicians  who have signed the notice of removal motion from arguing the same case.

But the Apex Court said it was for Sibal to decide whether to argue or not. Indeed the Court seemed too condescending to Kapil Sibal.

The top court repeatedly asked what purpose it would serve if Sibal was given a copy of the administrative order passed by the CJI that referred the petition to the five-judge Bench. Sibal maintained that only after getting the order would he decide whether to challenge it or accept it. But when the Supreme Court expressed reluctance to part with the administrative order, Sibal then abruptly decided to withdraw the petition.

At a press conference shortly after withdrawing the petition, Sibal listed the reasons why the petition was withdrawn. He expressed unhappiness at not getting a copy of the order passed by the CJI on the five-Judge Bench that was to hear the plea.

“We filed the petition in SC (challenging VP Naidu’s dismissal of impeachment motion against CJI) yesterday and it was to be heard today. But we were informed last evening that our petition will be heard by five judges. Who gave these orders? What were the orders?” the Congress leader questioned.

“Who referred the petition to the five-judge Bench? It is our constitutional right to know,” he added.