New Delhi,
The issue of removal of Chief Justice of India Dipak Misra reached the Supreme Court on Monday, with two Congress MPs filing a petition against rejection of the unprecedented removal notice against the CJI by Rajya Sabha Chairman M Venkaiah Naidu.

It has been listed for hearing on Tuesday before a Constitution Bench of Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel, who are number 6 to 10 in seniority.

The four seniormost judges Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph who had held a press conference against the CJI on January 12 have apparently been kept out of this all-important Bench that will hear this unprecedented petition. However, it was not clear as to who constituted the Bench.

The petition filed by Congress MPs Partap Singh Bajwa and Amee Harshadray Yajnik claimed the reasons given in the rejection order by Naidu were “wholly extraneous” and not legally tenable. Earlier in the day, senior advocate Kapil Sibal and advocate Prashant Bhushan mentioned the matter for urgent listing before a Bench headed by Justice Chelameswar, number two in the list of seniority.

In view of the Constitution Bench verdicts declaring CJI as the “Master of Roster”, the Bench initially asked the two noted lawyers to mention it before the CJI himself but agreed to take it up on Tuesday after Sibal pointed out that the CJI could not be a judge in his own case.

After considering the material contained in the notice of removal motion and the inputs from legal luminaries and constitutional experts, the Rajya Sabha Chairman had rejected the notice of the motion for removal of the CJI.

“I have applied my mind to all five charges made out in impeachment motion and examined all annexed documents. All facts as stated don’t make out a case which can lead any reasonable mind to conclude that the CJI on these facts can be ever held guilty of misbehaviour,” the RS Chairman had said.

But the petitioner MPs contended that the reasons given by the RS Chairman were “not legally tenable” and deserved to be set aside for being “wholly extraneous” and ultra vires the provisions of the Constitution and the Judges Inquiry Act.

The charges in the notice of motion were “extremely serious” and merited “a full-fledged inquiry to test their veracity”.

Sibal said the RS Chairman could not have summarily rejected the notice bearing signatures of 64 MPs by saying there was “no proved misbehaviour”.

Bhushan said as per Supreme Court Rules, the CJI was disabled to pass any order in this matter either on the judicial side or on the administrative side. “Only the seniormost judge can decide on the listing of this petition which has sought quashing of the order of the RS Chairman,” he said.

“There is a five-judge constitution Bench verdict on powers of Master of Roster. It would be appropriate if you mention the matter in court number-1 before the Bench of Chief Justice,” Justice Chelameswar told Sibal but agreed to take up the matter on Tuesday after a brief huddle with Justice Sanjay Kishan Kaul.

A five-judge constitution Bench of the apex court had in November last ruled that the Chief Justice of India was the “Master of Roster”. As Sibal pleaded for urgent listing, Justice Chelameswar who is due to retire on June 22 said, “I have only a few more days here. I am on the verge of my retirement.”

Terming it an unprecedented situation, Sibal said: “This petition raises a constitutional question of importance. How do you deal with this situation? Who has the power? Lordships will have to clarify. I understand the CJI has the power to direct for listing but this case is against the Master of Roster.”