A Bench headed by Justice Ashok Bhan dismissed as withdrawn the petitions filed by the two leaders. The directive came after the Bench perused an affidavit filed on behalf of the CEC that brought on record the changed stance of the Commission. Unlike former CEC B B Tandon, Gopalaswami told the court that he, in exercise of his suo motu powers, can initiate action against an Election Commissioner.

The CEC’s affidavit also clarified the stand taken by Tandon, saying that he could not act on the petitions for removal of Chawla filed by the BJP and SP MPs because it was addressed to the President.

In the face of this affidavit, the court allowed the two leaders to withdraw the petitions. In its order, it clearly said, “The questions raised before us, however, are left open. It would be up to the CEC to decide them in accordance with the law, if any representation is made before him.”

Strongly opposing the CEC’s stand, Additional Solicitor-General Gopal Subramanium said the Centre can proceed to take action against the Election Commissioner. “This is a peculiar case where the CEC has filed an affidavit. The petitioners, after withdrawing their petitions, will file a fresh representation before the CEC,” he remarked, while pleading that the stand of the Government should also be heard on this issue.

Refusing to entertain the Government’s plea, the Bench said, “We are not deciding the issue whether the 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 the CEC.”

“If the CEC commits a mistake, then you can come to the court. The point whether he (CEC) has the power or not — is not an issue before us and we are not going to adjudicate on the matter,” the court held.