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)
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