The Hindu : National : “Chawla case ought to have been referred to CEC”

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Wednesday, Aug 01, 2007
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“Chawla case ought to have been referred to CEC”

Legal Correspondent

Power to remove Commissioner vested only in CEC
This is to guard against interference

New Delhi: The President is not bound to go by the Cabinet advice in taking a decision to refer to the Election Commission the petition seeking the removal of Election Commissioner Navin Chawla, the former Attorney-General Soli Sorabjee argued in the Supreme Court on Tuesday.

A Bench consisting of Justices Ashok Bhan and V.S. Sirpurkar is hearing a petition filed by Jaswant Singh, Leader of the Opposition in the Rajya Sabha, questioning the appointment of Mr. Chawla.

He said the memorandum, signed by 205 MPs and submitted to the President, was forwarded to the Union Government instead of being referred to the Chief Election Commissioner (CEC).

Mr. 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 recommendation of the CEC).

Ensuring independence

The power to remove a Commissioner was vested only in the CEC to ensure that the Commission was free from political or external interference.

The words “except on the recommendation of the CEC” 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 complaint had to be adjudicated 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.

Exceptions to rule

He said: “Though the general rule is that the President is bound to act according to ministerial advice, there are well settled exceptions. In order to insulate the Election Commission from the influence of the government of the day, it should be laid down that the President is not bound by the advice of the Council of Ministers while exercising powers under Article 324 (5). Holding otherwise would indirectly confer the power of removal upon the Executive which in turn would destroy the independence of the Election Commission.”

Further arguments will continue on Wednesday.

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