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Wednesday, May 09, 2007
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Produce file on Cabinet advice to President on BJP plea: court

Legal Correspondent

We want to know whether advice was given on complaint against Chawla Issue of BJP writ plea for removal of Chawla

New Delhi: The Supreme Court on Tuesday asked the Centre to produce records on the advice/opinion given by the Cabinet to President A.P.J. Abdul Kalam on the BJP writ petition seeking the removal of Election Commissioner Navin Chawla.

A Bench consisting of Justices Ashok Bhan and Dalveer Bhandari, hearing the petition filed by Jaswant Singh, leader of the Opposition in the Rajya Sabha, told Additional Solicitor-General Gopal Subramaniam, "There is nothing on record on the advice given by the Cabinet to the President. We want to know whether any advice was given at all on the complaint."

Mr. Subramaniam said, "the Executive government is not obliged to send its advice on every complaint. But in the present case the Cabinet had given its advice to the President and being a `privileged document' it could not form part of the record."

The Bench said, "We would like to see the file. After the Right to Information Act, what privilege can you claim? If you claim any privilege, there is a possibility of drawing adverse inference. Keep the records with you as we want to see them."

He said there would not be any in difficulty in giving the records for court perusal.

The petitioner said 205 MPs had submitted a memorandum to the President seeking the removal of Mr. Chawla. It was forwarded to the Union Government instead of being referred to the Chief Election Commissioner.

Power only with CEC

The former Attorney-General Soli Sorabjee, appearing for the petitioner, said the matter ought to have been referred to the CEC as envisaged under Article 324 (5) of the Constitution (according to which an Election Commissioner shall not be removed except on the CEC's recommendation). The power to remove a Commissioner was vested only with the CEC to ensure that the Commission was free from political or external interference. The words "except on the recommendation of the CEC" in this Article were intended to ensure its independence.

Explaining the circumstances in which the President could act without the aid and advice of the Cabinet, Mr. Sorabjee said this was one instance in which the President could act independently. The actual adjudication on the complaint had to be done only by the CEC, whose decision would be binding on the President. In the instant case, the President was not at the mercy of the Executive and he need not go by Cabinet advice. Further arguments will continue on Wednesday.

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