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The Supreme Court on Tuesday dubbed as "piquant and unprecedented" the situation in the matter of impeachment of the Chief Justice of India, saying while the CJI was a party, four other judges "may also have some role".
Responding to the argument of the two Congress MPs that the court should tell them where to mention the matter seeking a copy of administrative order to set up a larger bench to deal with their petition, a five-judge bench headed by Justice A K Sikri said, "It is a piquant and unprecedented situation where CJI is a party and other four judges may also have some role. We don't know".
The 5-judge bench, was referring to four senior most judges of apex court -- Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph -- who had held January 12 press conference against CJI Dipak Misra raising litany of questions on allocation of cases.
The lawmakers, who later withdrew their plea challenging the decision of Rajya Sabha Chairman to reject the impeachment notice against the CJI, told the bench that they should be given a copy of the administrative order by which the constitution bench was constituted overnight to hear their petition.
The bench expressed its reluctance to senior advocate Kapil Sibal, appearing for the two lawmakers, saying that giving a copy of the administrative order "will not lead to anywhere" and they should argue on merits.
The bench declared the petitions moved by the two MPs as "dismissed as withdrawn" after Sibal decided not to press the petition, realising that the judges were not inclined to accept his arguments on parting with the administrative order.
The 45-minute hearing before the bench saw the Rajya Sabha Congress MPs--Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat-- raising a volley of questions over the setting up of the five-judge bench to hear the matter.
However, Attorney General K K Venugopal, appearing for Rajya Sabha Chairman M Venkaiah Naidu, sought dismissal of the petitions filed by Bajwa and Yajnik, pointing out that only two of the 64 members, who had earlier moved the impeachment notice in the Upper House of Parliament, have approached the apex court.
He said only two MPs from one party, the Congress, have moved the court when there were MPs from six other opposition parties who had moved a notice of impeachment motion before the Rajya Sabha chairman.
Before the AG, opened his arguments, Sibal raised several questions on the setting up of the constitution bench, including who had passed the order to set up such a bench to hear the matter.
He said the issue was that the power of 'master of roster' was unparalleled or was it subject to some guidelines and how was this power to be exercised.
"If the powers are unparalleled then can the powers be exercised the way he (CJI) likes? Then the question arises what way. We request your lordship to look at this issue. Lordship tells me that CJI is master of roster and that is the end of dialogue. But is it so? It is the beginning of a dialogue", Sibal said.
The senior lawyer said he would raise the issue to uphold the dignity and values of the institution and the court will have to decide whether the order on administrative side can be challenged or is it the only exception in this country that can't be challenged.
He read out Article 145(3) of the Constitution to say that there was a minimum requirement on the number of judges to decide the substantial question of law and other issues.
He said "I must know who passed this order. This court should give me a copy of the administrative order so that I can decide my future course. Petitioner has the right to know the authority who passed the order".
"What purpose will it serve to you. Will you challenge it. You mean to say the CJI can't pass this order," the bench said.
Sibal said then the court should tell him from where to get the copy of the order and where to mention the matter.
Responding to the attorney general's arguments, he said, "Next time, I will get all 64 MPs to come here then. Which law says that only two MPs cannot challenge the order".
The senior lawyer said if the CJI's order on administrative side cannot be challenged, then he will withdraw the plea.
The bench said, "Ok then the petition is dismissed as withdrawn"
Sibal had on Monday mentioned the matter for urgent listing before a bench headed by Justice J Chelameswar, the senior-most judge after CJI Dipak Misra.
While Justice Chelameswar initially asked him to mention it before the CJI, the bench, which also comprised Justice S K Kaul, later asked Sibal and advocate Prashant Bhushan to "come back tomorrow".
Late last evening, the matter was listed for hearing today before the five-judge constitution bench headed by Justice Sikri.
The Rajya Sabha Chairman had on April 23 rejected the notice, given by seven opposition parties led by the Congress for impeachment of the CJI on five grounds of "misbehaviour". This was the first time that an impeachment notice was filed against a sitting CJI.
Advocate Prashant Bhushan has filed an RTI seeking a copy of the administrative order constituting a five-judge constitution bench to hear the impeachment case against the Chief Justice of India, hours after the Supreme Court showed reluctance to part with it.
In his RTI application, Bhushan has sought information from the central public information officer of the Supreme Court regarding the listing of the case before a five-judge constitution bench and also who had passed the administrative order.
"Was writ petition of Pratap Singh Bajwa and another vs Chairman, Rajya Sabha and another listed on May 8 before a constitution bench by way of an administrative order? If yes, who has passed passed the order above mentioned," the RTI application filed by Bhushan said.
It further said, "Kindly provide me the copy of the order and allow me to inspect the concerned file along with any file noting concerning the said order".