POLITICAL DIARY

New Delhi, 7 February 2009

EC Credibility On Test

POLITY READS CONSTITUTION WRONG

By Poonam I Kaushish

Political Delhi is shamelessly busy demolishing Constitutional institutions. Not satisfied with making India’s high temple of democracy, Parliament, virtually zero it has now turned its ire on the Election Commission, all set to destroy it.

Creating history of sorts, the Chief Election Commissioner (CEC) N Gopalaswami has recommended to the President the dismissal of his colleague Election Commissioner (EC) Navin Chawla on charges of commission and omission. He obviously has good reason for the recommendation was sent in a 93-page-long letter (with 500 annexures)! 

Needless to say this has not only raked up a needless political controversy coming as it does just months prior to Gopalaswami’s retirement on 20 April and the General Elections but could lead to a crisis of credibility and confidence of the Election Commission if Chawla is anointed the next CEC without putting the controversy to rest.  

Even as the CEC seemed unperturbed by the Constitutional maelstrom he had generated, the Congress-led UPA too is unfazed. Dubbing the issue as the “CEC acting as a political boss”, it does not expect the controversy to snowball. Its assessment is based on three factors. One, the UPA constituents and the Left have endorsed the Congress line even as the BJP finds itself isolated within the NDA on the EC war.

Two, it is much ado about nothing against the backdrop that two previous CEC have been nominated for political offices by sundry parties. Recall, the erstwhile CEC MS Gill is the Union Sports Minister, elected to the Rajya Sabha by the Congress and his predecessor TN Seshan was the Shiv Sena candidate for the Presidential poll. While the former Comptroller and Auditor General of India TN Chaturvedi was elected to the Rajya Sabha by the BJP.

Three, by anointing Chawla as the next CEC, the UPA has sought to put an end to speculation over the next incumbent of Nirvachan Sadan. Reportedly, it intends ‘advising’ the President to reject the CEC recommendations which would make it imperative for Gopalaswami to quit.

Importantly, the polity is busy in their tu-tu-mein-mein and is trying to obfuscate the serious Constitutional questions raised by Gopalaswami. At the crux is: Are the CEC’s recommendations binding on the Government? Can the Government reject it on the ground that only it is empowered to remove an EC on the basis that it was the appointing authority?  The timing of the CEC’s letter? Why is Chawla not expendable?

The Constitution framers were clear. To ensure the independence of the Election Commission and protect it from political pressures it incorporated two provisos to Article 324(5). The first stipulates: “the CEC shall not be removed except in like manner and on the like grounds as a Judge of the Supreme Court and the condition of the CEC shall not be varied to his disadvantage after his appointment.”

The second proviso states: “Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the CEC.” Not what the Congress is making it out to be that as the EC was appointed on the advice of the Council of Ministers ditto is the case for his removal.  Clearly, this is erroneous.

Significant in this context is Dr Ambedkar’s views expressed in the Constituent Assembly on June 16, 1949.  He inter alia stated that “in the matter of removal of the other ECs’, the President can only act on the recommendation of the CEC” and that was “a very important limitation” on the President’s power. Thus, it is clear that it is the CEC alone who is competent to recommend the removal of an EC. As he prima facie would be the best judge to appraise the behaviour and conduct of an EC.

Moreover, the distinction between the authority of the CEC and other EC’s has been as underscored by the Supreme Court in the Dhanoa S.S. vs Union of India and subsequently in T.N.Seshan vs Union of India case wherein it states: “in order to preserve and safeguard the CEC’s independence, he has to be treated differently from other members of the Election Commission. Plainly, the CEC can act suo motu or on the basis of either information provided or received from a voter or citizens' group, including a political party.

Adding, “It is necessary to realise that this check on the Executive’s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body.” Bluntly, that while the office of the CEC is mandatory and not negotiable, appointment of the ECs’ are discretionary and the President, at any given time, can do without appointing them. However, once appointed and the Commission made a multi-member body, all its business shall be transacted unanimously and in the event of differences, the majority’s opinion shall prevail.

In Chawla’s case, Gopalaswami has based his recommendation by observing the EC’s functioning for more than three years. His letter to the President quotes many instances when Chawla used the same language, facts and figures on issues as the Congress leaders who spoke to Gopalaswami. While there is no legally tenable evidence attached to prove that Chawla talked to the Congress leaders and leaked the EC's decisions, there are numerous cases of circumstantial evidence to prove that Chawla was all the time in touch with Congress leaders.

A case in point, Chawla’s frequent visits to the ‘loo’ whenever crucial decisions were taken by the full bench of the Election Commission, is among the 12 instances cited.  Following which, invariably the CEC would get calls from top Congress leaders during the meeting tantamounting to interference in the functioning of the EC. Also mentioned is the PM’s Principal Secretary Nair’s visit to Nirvachan Sadan to enquire about the 'notice' being sent to Congress president Sonia on her receiving a Belgian award.

As regards the timing, the CEC states that he was “dictated by circumstances. It was not a deliberate decision. I had to wait till the Karnataka elections got over. Chawla took five months to reply to me. For one month he went on leave. I have taken only one-and-a-half month to prepare my opinion once I got his response to the charges made against him."

Importantly, why is the Congress hell-bent on having Chawla and only Chawla as the next CEC? Primarily because the CEC is all-powerful and his decision could make or mar Congress’s electoral chances in this general elections. Recall, that Chawla was hastily appointed the EC on the very evening of his demitting office as Environment Secretary to ensure his ‘seniority’ in the three-member body.

Further, a ‘willing’ CEC could oblige his ‘political master’ in various ways by sending  ‘pliant’ election observers to various States who would ‘conveniently look the other way’ in case of complaints regarding electoral mal-practices including booth-capturing. Many aver that if it had not been for former Secretary KJ Rao of the Commission, perhaps JD(U)’s Nitish Kumar may not have became Bihar’s Chief Minister.

A pliant CEC could very well curtail the deployment of security forces in sensitive areas as seen in the last UP Assembly polls wherein many Dalit villages exercised their franchise for the first time since Independence thanks to the heavy security bandobast. Also, he could ignore various electoral violations such as abuse of the moral code of conduct, filing of election returns, acting on complaints received against a party or its candidates et al.

The tragedy of it all is that in the Gopalaswami vs Chawala furore, the CEC’s other all-important three-page note to the President to amend the Election Commission Act to ensure its neutrality has been forgotten. Gopalaswami wants a bar on Election Commissioners from joining any political party for 10 years after retirement or taking up any Government post. As both hit at the very root of the principle of neutrality

In the ultimate, the Gopalaswami-Chawla face-off may not set the Yamuna on fire given our polity being past masters in trying to ‘co-opt and control’ the Election Commission and destroying it  But at the end of the day, it is not about Gopalaswami or Chawla but the Election Commission and its CEC’s credibility, transparency and objectivity. Towards this end Chawla must go! ----- INFA

(Copyright India News & Feature Alliance)