In an embarrassment to the Centre, the Supreme Court on Tuesday allowed BJP leader Jaswant Singh and another petitioner to withdraw their petitions seeking removal of Election Commissioner Navin B Chawla after Chief Election Commissioner N Gopalawami asserted that he had power to initiate action against an Election Commissioner on the basis of a petition to him.
A bench of Justice Ashok Bhan and Justice VS Sirpurkar said: “we cannot stop anyone from representing to the CEC,” even as Additional Solicitor General Gopal Subramanium vehemently objected saying the executive government alone could initiate action for removal of an Election Commissioner.
The CEC has no power in this regard except to make a recommendation to the President, he said and insisted the Centre be heard on this. The court declined his plea.
“This point — whether he (CEC) has the power or not — is not an issue before us and we are not going to adjudicate on the matter,” the bench said, adding it has left the question of law open and either party could challenge it.
Immediately after the petition was withdrawn, the BJP said it would formally petition to the CEC for Chawla’s removal. If the CEC recommends Chawla’s removal to the President, it would a huge embarrassment to the UPA Government, which has been defending him.
Terming the CEC’s position unfortunate, the ASG said all Election Commissioners were equal in status and salary under the law and expressed surprise that the CEC claimed power to remove an Election Commissioner.
“Right from Gill, Lyngdoh, Krishnamurthy, Tandon this position has been going on,” he said.
Subramanium, who termed the turn of events leading to the court’s order as “peculiar”, wanted the government to be heard on this important issue as the CEC had claimed power to remove an Election Commissioner and the petitioners were withdrawing their petition but the court did not agree.
The court had earlier asked senior counsel Arun Jaitley, representing another petitioner Chandrabhushan Singh of Samajwadi Party if the petitioners were ready to directly petition to the CEC instead of arguing that the NDA representation to the President for Chawla’s removal should be referred to the CEC for his recommendation. The petitioners had agreed to the suggestion and then the court had asked the CEC to clarify if he had power to entertain such petitions.
In his affidavit filed in response to the August 1, 2007 query from the court, Gopalaswami, who took over as the CEC from BB Tandon on June 30, 2006, said “the powers vested in him under the second proviso to Article 324(5) of the Constitution can be exercised by him on information which he has come to his knowledge during the course of his functioning as the CEC, or on the basis of any formal representation or petition filed before him by a political party or any other body.”
The CEC went to the extent of saying that he could initiate suo motu action against an Election Commissioner. Gopalaswami also justified his predecessor B B Tandon's stand that he could not act on the NDA representation for Chawla’s removal because it was addressed to the President.
Jaswant Singh had sought Chawla's removal on the ground that he would not be able to discharge his duties impartially in view of several allegations of impropriety against him.