Moot Problem

MOOT COURT PROBLEM Upon appointment of Shri Pravin Mohla as an Election Commissioner of India, Shri Prashant Singh, a leader of the opposition XYZ Party moved the Hon’ble Supreme Court of India seeking a writ in the nature of Quo Warranto against Shri Mohla with a direction that Shri Mohla was unfit to hold office of the Election Commissioner of India on the ground that he had misused his official position in as much as a Trust run by Smt Meena Mohla had received a portion of the MPLADS (MP Local Area Development Scheme). Notice having been issued by the Court, the Chief Election Commissioner submitted an affidavit to the effect that it was within his power to make a recommendation for the removal of an Election Commissioner, in terms of second proviso to Article 324(5) of the Constitution of India. Based on the arguments advanced by the parties, the Hon’ble Court was pleased to forward the petition filed by Shri Prashant Singh to Shri Krishnaswamy, the Chief Election Commissioner for disposing of the matter in accordance with law. Accordingly, a copy of the said Petition filed by Shri Prashant Singh was forwarded by the Chief Election Commissioner to Shri Mohla seeking his comments in the matter. After receipt of the said

comments, the Chief Election Commissioner recommended to the President of India that the said Shri Mohla may be removed from office on the ground of being ‘partisan’. It is alleged that in his letter to the President of India seeking removal from office of Shri Mohla, the Chief Election Commissioner had indicated as many dozen instances which clearly showed that Shri Mohla was favouring the ruling ABC government in the Centre. The President of India has since rejected the said recommendation based on the advise rendered by the Council of Ministers. Shri Prashant Singh has now moved the Hon’ble Supreme Court of India seeking a declaration that the said action of the President of India was illegal and unconstitutional and prayed for a writ in the nature of Mandamus with a direction that Her Excellency the President of India be asked to comply with the recommendation of the Chief Election Commissioner and issue necessary orders removing Shri Mohla from the office of the Election Commissioner. It is argued inter alia that the Constitution of India clearly places the Chief Election Commissioner on a different footing than the Election Commissioner and that they are not equals and that the recommendations of the Chief Election Commissioner are binding on the President of India. Further, it is submitted that Chief Election Commissioner has a superior role, because he alone under the

Constitution of India can recommend removal of Election Commissioner, a condition precedent for the President to act. Notice having been issued, Union of India has submitted inter alia that recommendation for removal of an Election Commissioner could only be made by the Chief Election Commissioner upon a reference to the effect from the President and that suo motu recommendation of the Chief Election Commissioner does not bind either the President or the Union Government. Also, the suo-moto recommendation by Chief Election Commissioner to remove the Election Commissioner is out of bounds and can only damage the institution of the Election Commissioner. Following broad issues have arisen for determination of the Court:a.

the true nature and scope of Article 324 (5).

b.

position of Chief Election Commissioner vis-à-vis the Election Commissioners.

c.

power of Chief Election Commissioner to recommend removal of Election Commissioner and the power of the President in such a case.

The matter has been listed for hearing on 27th March 2009, i.e. Friday.