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.
