President cannot bypass Council of Ministers, govt tells SC

New Delhi, May 9 (UNI) The Central government today contended before the Supreme Court that the President of India cannot bypass the Council of Ministers and send the representation seeking removal of an election commissioner directly to the Chief Election Commissioner (CEC) for his recommendation.

Additional solicitor general Gopal Subramanium made the submission before a bench comprising Justices Ashok Bhan and Dalveer Bhandari during the hearing of a petition filed by former Union Minister and senior BJP leader Jaswant Singh and the Chairman of Joint Parliamentary committee on office of profit Chandra Bhushan Singh seeking removal of election commissioner Naveen Chawla.

The Court, however, did not seem to be impressed with the contention of the government and wanted to know whether article 324(5) of the Constitution of India excludes the executive government from the process of examination of the representation made against an election commissioner and whether the President was bound to refer it to the CEC for his recommendation.

Mr Subramanium responded asking that when the government can participate in the process of appointment of an election commissioner, how it can be shunted out from participating in the process of his removal? The government counsel also contended that the article 3, 18, 31(A) and 53, of the Constitution clearly lay down that the President must act with the aid and advice of the Council of Ministers and the government cannot be debarred from examining the veracity of the allegation made in a complaint against an election commissioner.

The Court, however, wanted to know whether a representation duly signed by 205 MPs should be referred to CEC for his recommendation.

Earlier former attorney general Soli Sorabjee and senior counsel Mr Arun Jaitley appearing for the two petitioners had contended that the President was legally and constitutionally bound to refer a representation seeking removal of an election commissioner to CEC for his opinion in terms of mandatory provisions of article 324(5) and the executive government has no role to play in the matter of such representation.

The petitioners argued that the main purpose of article 324 was to ensure and insulate the independence of the Election Commission as well as protection of CEC and EC from executive interference so that they can discharge their constitutiuonal obligation of conducting free and fair election.

The petitioners also contended that the President had adopted a wrong procedure in referring the represntation duly signed by 205 NDA MPs to the govermment instead of referring it to CEC.

The representation was made by 205 NDA MPs in August 2005 to President APJ Abdul Kalam seeking removal of Naveen Chawla from the post of EC in view of his alleged dubious antecedents coupled with his proximity to the ruling Congress party at the Centre.

According to the petitioners, Congress MPs, including Union Minister Ambika Soni, have been contributing to a trust being run by family members of Naveen Chawla including his wife Rupika Chawla from their MPLAD funds.

The arguments shall continue tomorrow.

Naveen Chawla is being represented by senior counsel Ram Jethmalani.

UNI