The Congress said on Tuesday it withdrew from the Supreme Court a petition related to its move seeking the removal of Chief Justice of India Dipak Misra because the matter was referred to a five-judge bench without following the due process.

“The petitioners are entitled to know about the authority that passed the order to refer this matter to five distinguished judges. If the authority happens to be the Chief Justice, the petitioners are entitled to be informed of the order... a copy of the order (must also) be given to the petitioners before any proceedings take place,” said party leader Kapil Sibal.

On April 20, seven opposition parties led by the Congress had submitted to Rajya Sabha chairman M Venkaiah Naidu a notice for the launch of impeachment proceedings against Chief Justice Misra on five counts of “misbehaviour”. The notice was rejected three days later, following which Congress MPs Pratap Singh Bajwa and Amee Yajnik filed a petition against Naidu’s move in the top court.

The constitution bench formed late on Monday to hear the matter did not include five senior-most judges of the court. It was supposed to hear the plea on Tuesday.

The bench did not include the five senior-most judges of the Supreme Court Justices Jasti Chelameshwar, Ranjan Gogoi, Madan Lokur and Kurian Joseph, and Chief Justice Misra himself.

Justices Chelameshwar, Gogoi, Lokur and Joseph had on January 12 held an unprecedented press conference in Delhi during which they raised objections to the Supreme Court’s functioning and the way cases were allotted.

Sibal remarked that he was entitled to a copy of the order setting up the five-judge bench because it was his “constitutional right”, and not something that comes under the Official Secrets Act. “Once we get it, we will decide whether to challenge it or not. Every order in this country – of the PMO, the executive, or any public authority – can be challenged. Is this the only order that cannot be challenged?” he asked.

The senior advocate, who was appearing on the behalf of Congress’s Bajwa and Yajnik, pointed out that Supreme Court rules do not allow the Chief Justice to pass an administrative order referring the case to a five-judge bench because this gives rise to a “substantial question of law as to the interpretation of the Constitution”.

“If such an order has been passed by the Chief Justice, although the petition pertains to his own impeachment, then we should be given a copy of the order – we are entitled to it – so that we can study it,” said Sibal. “(However) They did not answer our question and asked us to argue on the merits of the case... So we withdrew the petition.”

The advocate clarified that the petitioners have no personal complaint against any judge, and their sole aim was to protect the judiciary’s “dignity and independence”. He also pointed out that it was not the Congress, but a few senior judges of the Supreme Court, who had flagged issues in the apex court.