A NOT-SO-ORDINARY spectacle unfolded in the Election Commission of India (ECI) on February 3 when an all-party meeting attended by seven national parties and 32 regional parties was convened to discuss the conduct of the general elections, due in April-May 2009. In what was a reversal of roles, representatives of various political parties exhorted the ECI to stand united and refrain from giving out the impression that there were divisions among the three Election Commissioners. It is normally the ECI that urges political parties to maintain unity, composure and concord.
It was directly related to the political and institutional tumult caused by the suo motu recommendation of Chief Election Commissioner (CEC) N. Gopalaswami to the President on January 12 that his fellow Election Commissioner Navin Chawla be removed from his post. Chawla, according to Gopalaswami, was guilty of partisanship. The contention in the letter was that the CEC had powers under Article 324(5) of the Constitution to recommend suo motu the removal of an Election Commissioner.
The letter and responses to it, including that from the leadership of the United Progressive Alliance (UPA) government, have raised a clutch of political, constitutional, legal and institutional issues, which are bound to have a significant impact on the functioning of the ECI in particular and Indian democracy in general.
Gopalaswamis conduct has also raised issues of propriety on the part of a person in a constitutional position. Several observers wonder whether Gopalaswami himself is guilty of the very partisanship he has accused Chawla of.
What brings up this question is the timing of the recommendation. Observers point out that Gopalaswamis recommendation cannot be perceived as being in order when he is scheduled to retire as CEC on April 20 and Chawla is expected to succeed him. Was it in the fitness of things for the CEC to come up with an action like this when barely three months were left for his retirement? An objective answer to this would unravel the impropriety of Gopalaswamis action, said Vayalar Ravi, a senior Congress Minister in the Union Cabinet.
Top constitutional lawyers such as Fali S. Nariman, Shanti Bhushan and K.K. Venugopal too point out the procedural and constitutional impropriety of making a recommendation as serious as the one made by the CEC at the present juncture.
According to Ravi and many other UPA leaders, the issue gets further accentuated by the political dimensions that have time and again come up in the sequence of events leading to Gopalaswamis recommendation. It all began with the principal opposition Bharatiya Janata Partys (BJP) complaint against Chawla to President A.P.J. Abdul Kalam on March 16, 2006.
The complaint, which was filed by BJP leader L.K. Advani and 204 MPs, sought the removal of Chawla as Election Commissioner under Article 324(5) of the Constitution, alleging that he had acted in a manner favouring the Congress party during the Emergency (1975-77).
It also alleged that Chawla had received money from the Member of Parliament Local Area Development Scheme (MPLADS) funds of Congress MPs to run two charitable trusts run by his wife, Rupika, in Jaipur. Kalam forwarded the complaint, in due course, to the government.
The BJP objected to this and said that the President should have forwarded their complaint to the CEC and not to the government. This objection about the inadvisability of forwarding the complaint to the government was also part of its contentions when the party later moved the Supreme Court on the issue. The petition, filed through then Union Minister Jaswant Singh, went through several hearings before the BJP withdrew its application from the apex court on August 7, 2007.
Significantly, before that, Gopalaswami had filed an affidavit in the Supreme Court stating that the Constitution vested him with powers to remove an Election Commissioner. He also clarified that he could not act on the petition filed by Advani and the MPs for the removal of Chawla because it was addressed to the President.
On January 30, 2008, the BJP decided to approach the CEC directly on the Chawla issue. A delegation of the party led by Arun Jaitley went to him with the complaint against Chawla. Significantly, the CEC received the BJP delegation in his chambers. What followed was a relatively long period of stasis. The CEC sat on the petition for nearly six months before sending a notice to Chawla on July 20.
In the meantime, according to Gopalaswami, there were serious differences between himself and Chawla over the timing of the Karnataka elections. In fact, Gopalaswami has attributed the very delay in acting on the BJP petition to the differences on the Karnataka polls. According to him, he decided to put the [BJP] petition on hold till the Karnataka election was over, lest it be misunderstood.
Chawla responded to the CECs notice on September 12, stating that he was seeking the Law Ministrys opinion on whether the CEC had the power to make a suo motu inquiry against an Election Commissioner. The CECs response to that was quick.
On September 17, he wrote to Chawla saying that the CEC had the power to take cognisance of the BJPs petition even without a reference from the government. He also demanded a response from Chawla on the merits of the [BJP] petition and not a discussion on the constitutional powers of the CEC.
Following this, Chawla forwarded to the CEC a clarification from Union Law Secretary T.K. Viswanathan, dated November 7, 2008, which maintained that the CEC could not proceed with the inquiry as any recommendation for the removal of an Election Commissioner under Article 324(5), in its opinion, could be given only on a reference from the government. Chawla reiterated these positions in his letter of December 10 to the CEC. Gopalaswami responded to this by recommending the removal of Chawla.
According to Ravi, the whole sequence of events pointed towards the eagerness of the BJP to somehow have the CEC decide upon its case against Chawla. And the CECs style and pace of functioning seem to be poised towards creating an impasse when his tenure is coming to a close and when Chawla is about to assume charge. No government would allow such goings on to pass unchallenged, Ravi said.
Gopalaswami, on his part, has responded saying that the delay in giving the recommendation was caused by Chawlas delay in filing the final response to the CEC. Union Law Minister H.R. Bharadwaj, however, has not accepted Gopalaswamis contentions and has maintained that the CEC has no business to act like a political boss and that he should concentrate on his duties in the Election Commission.
The BJP, naturally, has hailed the CECs move and stated that he is indeed entitled to suo motu recommendation of the removal of an Election Commissioner.
Interestingly, however, the CEC has rejected as irrelevant the BJPs allegations linking Chawla to excesses during the Emergency and has based the recommendation to remove Chawla on his own experience and observations of working with the Election Commissioner. In the process, the CEC has characterised some of Chawlas opinions on the timing and manner of conducting elections in some States as biased.
Other political parties, including those of the Left, have criticised the CEC for making the suo motu recommendation. In terms of a governance response, there are clear indications that the UPA government would not accept and act on the CECs recommendation.
The BJP is contemplating seriously whether to approach the judiciary once again with its allegations against Chawla, using the CECs recommendation as a peg. By all indications, opinion is divided in the BJP, though the party has decided to pursue the issue aggressively in political forums.
The argument that the BJP plans to advance in political forums is that the government cannot go against the recommendation of the CEC on the Election Commissioner. If Parliament passes a motion to remove the CEC, the government cannot refuse. The CEC and the two Election Commissioners have equal votes keeping in terms of their internal functioning, but as per the Constitution, they are not equal as there are different procedures for their removal, Jaitley, a former Law Minister, told Frontline. In spite of his contentions, the overriding mood in the BJP on the question of judicial review in this case is one of diffidence.By all indications, this is prompted by the record in the judiciary in cases pertaining to Article 324(5). In T.N. Seshan, Chief Election Commissioner of India v. Union of India (1995), the Supreme Court took cognisance of the then Attorney General Ashok Desais contention 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 EC.
The Supreme Court also held in this case that the Article 324(5) proviso for the removal from office of the CEC only through impeachment (as in the case of Supreme Court judges) as well as the proviso that the Election Commissioners shall not be removed except on the recommendation of the CEC (based on intelligible, and cogent considerations) was designed to protect the independence of the Election Commission as a body from political or executive arbitrariness.
The court specifically held that ifthe power [of recommending removal of an Election Commissioner] were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs if they are required to function under the threat of the CEC recommending their removal.
Legal luminaries such as Nariman and Ashok Desai say the well-accepted legal position is that the three-member Election Commission is a constitutional body of co-equals, with equal voting power, and the CEC is the first among equals with certain leadership and administrative responsibilities. The fact that Election Commissioners are appointed by the President and can be removed only by the President is also highlighted in this context. It is also pointed out that the necessary constraint imposed on the political government and the executive that Election Commissioners cannot be removed without the recommendation of the CEC should not be construed as something that provides the CEC with overreaching powers to remove an Election Commissioner.
Clearly, the debate on the legal, constitutional and political dimensions of the row involving the CEC and an Election Commissioner would hold considerable public and media attention in the coming days notwithstanding the governments rejection of the suo motu recommendation of Gopalaswami. What is perhaps most unfortunate is that the unseemly controversy has erupted at a time when the ECI should have been gearing up for a major organisational challenge, the general elections.
Such has been the impact of this controversy that it has even given rise to strains of public opinion that those in the leadership of constitutional institutions are deliberately adopting and pushing political positions with an eye on political offices in future. According to veteran political analyst Hariraj Singh Tyagi, the precedence of Election Commissioners and senior officers of the Indian Administrative Service and the Indian Police Service occupying ministerial and gubernatorial positions after retirement could well have something to do with the present controversy.
The fact that a constitutional institution, which has been credited with efficient and credible functioning over the last decade and a half, should come to this pass is indeed disappointing, he said. By any yardstick the veteran political commentators analysis would find widespread acceptance.
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