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Author: Abraham Thomas
Publication: The Pioneer
Date: April 14, 2007
'Centre should have consulted CEC instead of AG'
The UPA Government suffered a major loss of face in the Supreme Court on Friday over its decision not to consult the Chief Election Commissioner on the NDA petition seeking removal of Election Commissioner Navin Chawla.
Hitting out at the Centre's decision to consult the Attorney General instead of the CEC to dispose of an Opposition plea against Chawla, the Supreme Court Bench remarked, "The President has to seek opinion of the Chief Election Commissioner under Article 324(5). He does not act on advice of the Cabinet."
The Bench of Justices Ashok Bhan and VS Sirpurkar agreed that the matter required urgent consideration and fixed May 8 to decide it finally. Additional Solicitor General Gopal Subramanium appeared for the Centre while senior advocate Soli Sorabjee and Arun Jaitley represented the petitioner. The court asked both sides to submit replies before the next date of hearing.
The court's tough stand on the issue has come as a shot in the arm for the National Democratic Alliance which had initially lodged its protest against Chawla by submitting a memorandum signed by 205 MPs with the President.
The petition had quoted news reports that a trust run by Chawla's wife received funds from Congress MPs under MPLAD scheme. He had even received discretionary allotment of land in Delhi and Jaipur from the Congress Government, the reports stated.
The Centre had dismissed NDA petition on the advice of the Attorney General. While exonerating Chawla, the AG told the Centre that the charges related to the period prior to his appointment as EC in May 2005.
The matter came to Supreme Court when Leader of Opposition in Rajya Sabha Jaswant Singh contended that the Government should have taken CEC's opinion before deciding the NDA petition against Chawla.
Responding to the Bench's query on why the CEC's opinion was not sought, the ASG argued that the matter involved "extensive interpretation of constitutional provisions." Under the constitutional scheme, Article 324(5) provides power to the President to remove Election Commissioner "except on the recommendation of the CEC."
Subramanium told the Bench that the Government's decision not to remove Chawla is fully covered by a five-judge Bench decision in 1985 (TN Seshan's case). He even objected to the Bench's suggestion about the Cabinet's advice not binding upon the President stating "the Election Commissioner cannot be removed in this manner."
At one stage, the ASG even demanded that once the arguments have been heard in the matter, the Bench may decide whether this should be referred to a larger Bench. To this, the Bench said, "We know the five-judge Bench decision and we are bound by it." But at the same time, the court insisted, "We can't dismiss the petition offhand since substantial questions of law are involved."
Sorabjee, who appeared along with senior advocate Arun Jaitley for the petitioner, stated that the Centre cannot claim its prerogative over President's extra-judicial powers. Even if it's assumed for the sake of argument that the aid and advice of the Council of Ministers is required, yet it cannot restrain the President from seeking the advice of the CEC, Sorabjee argued.
Realising that the constitutional authority of the President was under challenge, the Bench agreed with the petitioner that the matter is indeed "serious" and required to be settled at the earliest.
Chawla is already in the thick of controversies with the BJP demanding he should recuse himself from the panel hearing the CD case.
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