Legal Correspondent

CEC files affidavit in court saying he has powers to remove Election Commissioner and that he can act on plea by third party also

CEC cannot act suo motu in the matter, says Additional Solicitor-General

“Affidavit silent on the role of the Government”

New Delhi: The Chief Election Commissioner (CEC) filed an affidavit in the Supreme Court on Tuesday that he had the powers to remove an Election Commissioner (EC).

In view of this stand, the BJP withdrew its petition for a direction that the complaint by 205 MPs sent to the then President A.P.J. Abdul Kalam seeking removal of EC, Navin Chawla, be forwarded to the CEC.

When the matter was taken up on Tuesday, senior counsel Soli Sorabjee, informed a Bench of Justices Ashok Bhan and V.S. Sirpurkar that the petitioner Jaswant Singh, Leader of the Opposition in the Rajya Sabha, wanted to withdraw the petition in view of the CEC’s stand. Samajwadi Party MP Chandra Bhushan Singh also sought withdrawal of his petition.

The CEC in his affidavit said: “It is the understanding of the CEC that the powers vested in him under the second proviso to Article 324 (5) of the Constitution [according to which an Election Commissioner shall not be removed except on the CEC’s recommendation] can be exercised by him on information which 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 by any person or body. In the former case, it would be an exercise of suo motu powers by the CEC, while in the latter case he would be acting on the basis of the petition or representation filed by a third party.”

Appearing for the Centre, Additional Solicitor-General Gopal Subramaniam contended that the CEC could not act suo motu in the matter. He argued that the Centre alone could proceed to take action against Election Commissioner.

He said this was a peculiar case where the CEC had filed an affidavit. And the petitioners, after withdrawing their petitions, would file a fresh representation before the CEC. He said the Government’s stand should be heard on this important issue before any order was passed.

He contended that all three members of the Election Commission were on a par with the other and even their salaries were made equal by Parliament.

He contended that the executive government was the only authority to initiate proceedings against the Election Commissioner. But the affidavit of the CEC was silent on the role of the Government, he said.

The Bench told the Additional Solicitor-General: “We are not deciding the issue whether CEC has the power or not. We cannot stop anybody from filing the representation before the CEC but you can challenge the decisions taken by CEC on the representation. If the CEC commits mistake then you can come to the court. We would then decide the matter.”

The Bench while recording the submissions of the Additional Solicitor-General said: “We are allowing withdrawal of the petitions while keeping open all questions [raised in the petitions]. They can make representation to the CEC, who will decide such representation in accordance with law. We are not expressing any opinion on merits.”