President has no discretion in removing election commissioner: Centre
May 9, 2007 - 10:34:16 PM
New Delhi, May 9 - The union government Wednesday told the Supreme Court that the constitution does not vest discretionary power on the president on issues related to removal of Election Commissioner Navin Chawla.
Additional Solicitor General Gopal Subramaniam told a bench of Justice Ashok Bhan and Justice Dalveer Bhandari that the president could not take an independent decision to forward the Bharatiya Janata Party's complaint addressed to him to the Chief Election Commissioner N. Gopalswami for appropriate action.
The bench was hearing a writ petition by senior BJP leader Jaswant Singh seeking removal of Chawla from the post of election commissioner for his alleged bias in favour of the Congress party.
Subramaniam said that the president needs the aid and advice of the union council of ministers to take any decision on a representation made to him as he has no discretionary power.
The law officer contended that the president was merely a receiving authority of any kind of representation or complaint and he has to automatically refer them to the union cabinet for advice.
Singh in his petition to the court had contended that under Article 324 - of the constitution, the centre was under constitutional obligation to refer the memorandum seeking Chawla's removal to the Chief Election Commissioner.
Subramaniam asserted that the president could not directly send any representation to the chief election commissioner and had to take the Cabinet's advice.
'Article 324 does not vest the president with any discretion to bypass the Cabinet and send any representation made to him regarding the removal of Election Commissioner directly to the Chief Election Commissioner,' he said.
'Removal of the EC is meant to be an exception and it is not a rule. If the government can initiate the proceeding for the removal of the election commissioner, then it has also the right to stay the proceedings,' Subramaniam contended.
He said if all the complaints for removal of the EC was directly sent to the CEC it would amount to diminishing the office of election commission and putting it to great disadvantage.
To a query by the bench on whether aid and advice of the council of ministers was needed if the office of the election commission was to be kept independent, the law officer said: 'Executive government comes at the initial as well as the final stage of the proceeding for the removal of election commissioner and even after the opinion of the chief election commissioner, the recommendation of the cabinet is required.'
Subramaniam contended that it was the government's responsibility to go through such representation to find out whether there is merit in such representation.
'If the Government passes the representation directly to the CEC then it would amount to abdicating its responsibilities vested to it by the constitution,' he said.
Arguments will continue Thursday.
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