Institutional coup

Print edition : February 27, 2009

Nirvachan Sadan, the seat of the Election Commission in New Delhi.-

IF Chief Election Commissioner N. Gopalaswami wanted to tarnish the reputation of a statutory body that is a pillar of the Constitution of India and enjoys high credibility for organising largely free and fair elections, he could not have used a more effective method than to recommend to the President the removal of Election Commissioner Navin Chawla, and that too barely three months before he is himself due to demit office.

Gopalaswami has precipitated a political crisis, if not potentially a constitutional one too. He has certainly caused divisions in the Election Commission just when it is called upon to show coherence and unity of purpose as it is getting ready to hold a phased general election, probably beginning in April. Most political parties, barring the Bharatiya Janata Party (BJP), have sharply criticised the CECs decision.

There are two aspects to the controversy: a legal aspect and a moral-political one. The moral-political issues are more important than the legal ones. Admittedly, the legal aspect is complicated and somewhat befuddling. Our legal luminaries are divided over whether the CEC has the power to recommend an election commissioners removal suo motu.

While the majority of eminent lawyers quoted in the media say the CEC lacks such suo motu powers, a minority feel that he has them, especially if he thinks one of his colleagues should be dismissed in order to save the Election Commission in the extreme case where its integrity could be jeopardised by her/his continuation in it.

Most are agreed that the President is not duty-bound to accept Gopalaswamis recommendation without scrutinising the facts and arguments. It is not the President in her personal capacity but the President acting on the advice of the Council of Ministers who must decide this.

Gopalaswami himself bases his claim about his suo motu powers on former Attorney General Ashok Desais interpretation of the Supreme Court judgment in T.N. Seshan vs Union of India, 1995, which holds the opposite view, namely, that the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an E.C..

Under Article 324 of the Constitution, an E.C. shall not be removed from office except on the recommendation of the CEC, but the CEC can only be removed much in the manner of a Supreme Court judge through impeachment by Parliament, a more stringent procedure.

The Supreme Court in its 1991 judgment in S.S. Dhanoa vs Union of India and others said the CEC deserves a higher degree of protection because he is a permanent incumbent of the Election Commission, whereas the number of E.C.s can be varied depending on the workload. The government has the prerogative to create or abolish the E.C.s posts. For many years, India had a single-member Election Commission, but this changed in 1989-90. And since 1993, it has been a three-member body.

Ironically, five years ago, Gopalaswami himself signed a letter to the Prime Minister asking for a change in the procedure for removing E.C.s by amending Article 324(5) of the Constitution. The Article, it argued, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removing Election Commissioners from office as is available to the CEC namely, impeachment.

However, let that pass. It is incontrovertible that the CEC enjoys administrative primacy in a multi-member commission. But there ends the functional difference in powers between him and the E.C.s. In all material decisions pertaining to elections, each member of the Election Commission has an equal vote, and the CEC can be overruled by the other two members, as has happened a number of times.

In any case, the CEC must offer intelligible and cogent grounds for his recommendation to remove an E.C. and exercise his powers in a reasonable manner. He or she must not act on his whim and caprice, and become an instrument of oppression which would destroy the independence of the E.C.s and compel them to work under the constant threat of dismissal.

It is unclear whether Gopalaswami offered such cogent grounds while recommending Chawlas removal. From the selective leaks that have been made to the media, it appears that he has cited 12 instances of Chawlas partisan behaviour, in particular their differences over the polling dates for the Uttar Pradesh, Gujarat and Himachal Pradesh elections.

It is impossible to judge the merits of this argument fairly because the contents of the letter are not public. But if it is true, as alleged, that Chawla made improper disclosures to the Congress party about arrangements for the elections in order to influence the Election Commissions decisions, then this is a serious matter, which needs to be verified and investigated. Corrective action then needs to be taken.

What is clear is that Gopalaswami was acting on and based himself on the BJPs petition, submitted to him in January last year after it was withdrawn from the Supreme Court in August 2007. Yet, he claims that he treated as irrelevant many of the BJPs allegations about Chawlas partisanship going back to the days of the Emergency and based himself on his own evaluation of Chawlas work as an E.C.

Three things about Gopalaswamis conduct are intriguing. First, he did not convene a meeting of the three-member Election Commission to hear the BJP leaders complaint about Chawla. Instead, he met the leaders in his chambers. Nor did he take the third E.C., S.Y. Quraishi, into his confidence about the complaint or his assessment of it. Second, Gopalaswami allowed one year to lapse between receiving the complaint and writing his report to the President, perilously close to the impending announcement of the schedule of the next Lok Sabha elections. He says he deliberately delayed issuing notice to Chawla until July 21, 2008, in view of the Karnataka elections lest it be misunderstood. But the elections were completed in May. So, even the two-month gap is hard to appreciate.

Gopalaswami told The Times of India that Chawla finally replied to his charges only on December 10, and he sent his report to the President a month later. He put the onus for the delay squarely on Chawla: The timing was determined by circumstances beyond my control.

But Chawla had raised preliminary objections to the notice in September and said he would seek the Law Ministrys opinion on whether the CEC had the power to make a suo motu inquiry. The Ministry stated on November 7 that Gopalaswami could not proceed with the inquiry suo motu, in the absence of a reference from the government. At any rate, despite this official opinion, Chawla replied after receiving several reminders.

Third, Gopalaswami could not have been unaware of the likely political fallout of his report at this sensitive time. Levelling allegations about Chawlas partisanship towards the Congress was bound to raise many uncomfortable questions about his role during the Emergency, for which he was indicted by the Shah Commission. This in turn has predictably drawn counter-allegations about Gopalaswamis own ideological-political leanings.

The Congress was quick to point out that Gopalaswami was hand-picked as Home Secretary by former Home Minister L.K. Advani and that the congruence of views between him and the BJP on the powers of the CEC is no aberration. Increasingly, Gopalaswami is seen as playing politics ahead of the elections. The Congress and the BJP have both been blamed for politicising the Election Commission by packing it with their pet bureaucrats.

This is not to defend or whitewash Chawlas past. But the BJP did not object to his many postings until 2005, including important ones under the National Democratic Alliances dispensation. Now, it is cynically trying to exploit Gopalaswamis report by pushing through a sectarian agenda in the confrontationist manner that is notoriously characteristic of its political approach.

What is at stake today is not so much the reputation of Gopalaswami or Chawla as the image of the Election Commission as an institution of high integrity at a critical point of time. The political rationale behind establishing the Election Commission as a credible and independent institution free of partisan meddling is central to democracy itself.

The purpose of Article 324 is to insulate the Election Commission from executive interference by protecting E.C.s against arbitrary removal and fixing their terms at six years from the date he/she assumes office or until the day he/she attains a certain age, whichever is earlier. Even the courts must follow a hands-off approach once the election process has begun. This is the reason for creating a special category of election petitions.

Indeed, for good measure, Article 324 also says that the CECs service conditions shall not be varied to his disadvantage after his appointment. In the original constitutional scheme, the Commission was implicitly conceived as a single-member body, but it has evolved, after the terrible experience with Seshans whimsical and authoritarian ways, into a multi-member one. This is how it should be if it is to be protected against the arbitrary decisions of one individual.

If the central, overarching objective is to safeguard the Election Commissions independence and autonomy and prevent over-reliance on a single individual or his domination of the body, that cannot be fulfilled by extending special protection only to the CEC while leaving the E.C.s under his authority without protection against his prejudices or adverse judgments. What is sauce for the goose is sauce for the gander.

Gopalaswamis assumption or appropriation of suo motu powers to indict Chawla runs against the very grain of this rationale and is tantamount to a gross political and constitutional impropriety. It has played straight into the hands of a party that has shown scant regard for political decency and democratic norms.

It goes without saying that the government should not accept or act on Gopalaswamis recommendation. But the whole episode contains a lesson. The Election Commission and the constitutional provisions and laws pertaining to it are in need of reform. The first big step is to make the appointment of all E.C.s consensual and relatively autonomous of the government of the day. This can be done by setting up a council or collegium along the lines of the National Human Rights Commission but including the Leader of the Opposition, the Lok Sabha Speaker, a judge of the Supreme Court and eminent citizens representatives besides the Law Minister.

A second step is to extend the protection given to the CEC through the impeachment requirement to all E.C.s. This will prevent abuse of power and discourage arbitrary judgment and action on an individuals part.

However, a third measure is also in order. There is no reason why Chawla should automatically succeed Gopalaswami as CEC by virtue of seniority. No rule says the CEC must be the commissions senior-most member. The government would do well to appoint someone with impeccable non-partisan credentials as the CEC after amending Article 324 and setting up a collegium.

The Election Commission is too precious to be left at the mercy of members who lack discrimination and a sense of balance. Nor should it be allowed to be maligned through sectarian politicking.

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