President cannot bypass Cabinet on removing ECs, Centre tells court
New Delhi, May 9
The UPA Government on Wednesday asserted before the Supreme Court that the President cannot by-pass the Cabinet in the matter of removal of Election Commissioners and any representation received by him in this regard has to be scrutinised by the government.
During arguments of senior BJP leader Jaswant Singh’s petition challenging the appointment of Chawla as Election Commissioner in view of certain allegations of impropriety and misconduct against him, Additional Solicitor General Gopal Subramanium contended that the President did not have any discretion in the matter.
“Article 324 does not vest the President with any discretion to bypass the Cabinet and send any representation made to him regarding removal of Election Commissioner directly to the Chief Election Commissioner,” he said.
He said this was needed to protect the Election Commission from any ‘frivolous complaint’against its members. “If the Cabinet is not allowed to scrutinise the complaint or representation made to the president then we would be putting the office of the Election Commission to a great disadvantage,” the ASG argued. He said tn the present political world it was very easy to make allegation against any person and the CEC should be troubled only when there was prima facie truth in the allegations against the Election Commissioner.
Earlier, on behalf of the petitioners, senior counsel Soli J Sorabjee argued that the second proviso to Article 324(5) of the Constitution required the President to refer the memorandum sent by 205 NDA MPs seeking Chawla’s removal to the Chief Election Commissioner for his recommendation. He said in view of specific provision contained in Article 324(5), the general principle would not apply here. Senior counsel Arun Jaitley supported his arguments on behalf of another petitioner Chandra Bhushan Singh.
Citing the T N Seshan’s case judgment, Sorabjee submitted that this was important to ensure independence of the Commission as a body against any possible political pressure from the executive government of the day.
However, the ASG submitted before a Bench headed by Justice Ashok Bhan that the general principle that the President acted on the aid and advice of the Council of Ministers would apply to this kind of situation as well.