Wednesday, February 04, 2009

EC's removal: Relevance of SC's August 7, 2007 order

In the update to my previous post, I cast doubts on the correctness of the Supreme Court's August 7, 2007 order, in view of a vague sentence appearing immediately after the Bench sums up Ram Jethmalani's arguments, and also because the seemingly erroneous sentence appeared even as the Bench said it was expressing no opinions on the merits of the case. However, after reading Soli Sorabjee's article today (on whose word?) it appears to me that the order probably has some impact on the ongoing debate. Let me explain what I infer from this order, even though Sorabjee himself does not refer to it. Two contemporary newspaper accounts of the oral arguments in the Court on that day, linked here and here, also sustain my inference.

1. The CEC can tentatively decide any petition submitted to him seeking the removal of the EC. That is, he can recommend the EC's removal, subject to judicial review of the correctness of his recommendation.

2. The Bench dictated this order after the Government agreed to come back to the Court if it was not satisfied with the CEC's decision on the BJP's petition, that is, the CEC's recommendation as to EC's removal. The Government agreed that it is not for the Executive to reject the CEC's recommendation, but it ought to seek the Court's intervention to reject it. Implicitly, it can be suggested that the Government agreed to be bound by it, if it was satisfied with it.

3. The Court kept the following questions open, to be considered later, in the event of challenge to CEC's decision:

A. Whether the President is bound by the advice of the Council of Ministers on the question of removal of an EC;

B. Whether the CEC can suo motu recommend removal of an EC, despite the absence of a reference from the Government (though the Court tentatively permitted the CEC to decide the petition, in accordance with law, it kept the option of judicial review of this issue open, as the Government as well as Navin Chawla contested the CEC's affidavit); and

C. Whether the Government is bound to make a reference to the CEC, following the receipt of a complaint/petition against an EC by the President, who in turn, forwarded it to the Government.

Considering the Constitutional scheme with regard to the CEC's powers, it can be suggested that the Supreme Court did not want the Government to reject a recommendation of the CEC without cogent reasons on its own. Therefore, it wanted the Government to approach the Court to challenge the CEC's recommendation on merits. The Court wanted to keep the power to annul the CEC's recommendation to itself, and not cede it to the Government of the day, as it would have compromised the autonomy of the CEC and the EC.

(P.S. Feb.12, 2009: This post must be read along with this latter post, as I have considerably modified my view on the matter)
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