The senior-most judges after the CJI - J. Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan B. Lokur - could not have been picked to hear the case, since numerous issues raised by them against the CJI in their unprecedented 12 January press conference found their way to the impeachment motion. These judges had held the controversial January 12, 2018, press conference in which they had virtually revolted against the CJI by raising a litany of allegations against him.
The development came hours after justice Chelameswar, before whom the petition of the two Congress MPs was mentioned, expressed reservation in hearing the matter asking senior advocate Kapil Sibal and advocate Prashant Bhushan to "come back tomorrow". The petition was mentioned before the Chelameswar Bench as the removal motion was against CJI Misra, who was presiding over the Bench in the court next door at the time.
Sibal told the court that since the matter involved the Chief Justice of India, it could not be mentioned before him. "The procedure is simple, but if Your Lordship wishes to depart from it, I have nothing to say".
The petition called for a declaration that the Vice President as chairman of the Rajya Sabha can not exercise discretion and that he must set up an inquiry panel under the Judges' Inquiry Act, to probe the allegations against CJI Misra. "This petition raises serious questions of huge constitutional importance for today and future", Sibal said and kept persuading Justices Chelameswar and Kaul to order listing of the petition.
Chelameswar was initially reluctant to constitute a bench himself, as the CJI has repeatedly insisted that since he is the master of the roster, only he has the power to constitute benches.
On these grounds, among others, it has been prayed that Naidu's order rejecting the motion for removal of CJI Misra be set aside. "If a matter can not be mentioned before the CJI then it is supposed to be heard here". "The misconceived motion for the impeachment of the Chief Justice of India is just one example of this", Jaitley had said.
Justice Kaul asked Sibal, who has drafted the petition, whether the plea had been numbered.
On 24 April, Vice-President Naidu rejected the impeachment notice signed by 71 opposition MPs of the upper house, seven of whom retired last month, against CJI Misra, citing absence of any "proved misbehaviour" or "incapacity" on the part of the senior judge.
On April 20, as many as 64 MPs belonging to seven political parties signed the notice for removal proceedings against the CJI.