After EC’s counsel said “the CEC believes that he does have the power in a given circumstance if a representation was directly made to him to recommend the removal of an Election Commissioner”, the apex court asked the poll panel to file an affidavit in this regard.

“If this stand of EC becomes clear, the matter will come to an end and we will dispose of the petitions,” a Bench of Justices Ashok Bhan and V S Sirpurkar said.

However, when Additional Solicitor General Gopal Subramanium expressed his reluctance to accept this view, the Bench allowed him to seek Government’s instructions.

“It is an important constitutional matter. I have to argue...,” the ASG said, expressing his reservation against the view that the CEC, on a direct representation against the EC, can make a recommendation.

“The matter cannot be disposed of. My concern is that the CEC is intended to be a safety valve for purpose of removal (of an EC) in extreme cases only,” Subramanium said.

He said in this case, the petitions only speak about Chawla before he became the Election Commissioner and there was no allegation against him after he assumed the office.

However, the Bench said “even the conduct of the past can be considered before making an appointment as here a question of moral turpitude arises”.

Senior BJP leader Jaswant Singh and Samajwadi Party MP Chandra Bhushan Singh have sought Chawla’s removal on the grounds that he would not be able to discharge his duties impartially in view of several allegations of impropriety levelled against him.

The BJP leader referred to the representation of 205 NDA MPs for Chawla’s removal that alleged that he would not be able to do his job in a fair and unbiased manner as the trust run by his wife took donations from Congress MPs’ MPLAD funds.

They have contended that the Government adopted a wrong procedure for giving advice to the President by referring the matter to the Union Cabinet instead of referring it to the EC.