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Gopalaswami-Chawla Row:EC’s IMPARTIALITY CRUCIAL, by U.C. Agarwal,24 February 2009 Print E-mail

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New Delhi, 24 February 2009

Gopalaswami-Chawla Row


By U.C. Agarwal

(Former Central Vigilance Commissioner)

“Free and fair” elections are the pre-requisite of a true democracy. Accordingly Article 324 of the Constitution has vested the power of “superintendence, direction and control of the preparation of the electoral rolls and the conduct of all elections to Parliament and to the legislatures of every State and elections to the offices of the President and Vice-President of India” to an “independent” body designated as the Election Commission.

Presently the Election Commission of India is a three-member body comprising of the Chief Election Commissioner (CEC) and two other Election Commissioners (ECs). They are all appointed by the President and their tenures of office and other service conditions are determined by law passed by Parliament. According to the existing provisions of the law their tenures of offices are for six years subject to the upper age limit of 65 years.

To ensure the “independence” of the Commission Article 324(5) of the Constitution provides that the CEC once appointed cannot be removed from his office “except in the manner and on the like grounds as a judge of the Supreme Court”. The other ECs also cannot be removed from their offices “except on the recommendation of the CEC”. Their other conditions of service too cannot be varied to their disadvantage while in office.  

The removal of a Supreme Court judge from his office under Article 124(4) of the Constitution is very difficult, if not an impossible proposition. The grounds of “proved misbehaviour of incapacity” for removal of a Supreme Court judge under the above Article requires an address to the President by the Parliament, supported by a majority of the total membership of each House and 2/3rd majority of the members of each House of Parliament present and voting.

The intention of the Constitution makers in laying down this stiff condition for removal of a judge was obviously to make the judiciary fully independent and fearless in discharging its important Constitutional functions. These include to uphold the constitutional rights of the citizens and to prevent excesses if any, of the Legislature or the Executive by not adhering to the constitutional limits of their powers.

Few other constitutional institutions, e.g. the Election Commission and the Comptroller & Auditor General of India also enjoy “independence” or freedom from interference in the performance of their important constitutional duties. The CAG is required to function as a watchdog over public expenditure incurred by the Executive. All public expenditure has to be in accordance with the budgetary provisions approved by the legislatures (i.e. Parliament at the Centre and State Assemblies in the States).

Any deviations from the same e.g. excess of expenditure or unapproved expenditure, are to be taken note of by the CAG while auditing the government accounts. Where necessary any unauthorized expenditure is reported by him to the respective legislatures. To make him fearless in performance of this important duty, the CAG once appointed cannot be removed from his office under Article 148 of the Constitution like the CEC “except in the like manner as a judge of the Supreme Court”. His conditions of service too cannot be varied to his disadvantage during his tenure of office.

Another important provision under clause (4) of Article 148 of the Constitution lays down that the CAG “shall not be eligible for further office under the Government of India or under the Government of any State” after he ceases to hold office. Thus, the CAG is not only free from any harm while holding his office but is also made temptation-free after retirement so as not to look for any favour from the government by way of another high office. Being made ineligible for any office after retirement would ensure that there be no temptation for him to ignore or fail to report any financial wrong doings of the Executive.

In the case of the Central Vigilance Commissioner (CVC) also temptation of securing some post retirement office has been removed with greater clarity under Sec (6) of the Central Vigilance Commission Act 2003. It makes the CVC and other members of the Commission ineligible after retirement for posts such as that of ambassador, governor or any other post under the Government of India or the State Governments.

Unfortunately, no such constitutional provision exists at present to debar the CEC and other ECs from being appointed to any government offices after their retirements. Compared to the CAG and the CVC, the CEC and the ECs have far greater interactions with political parties and political leaders as the Election Commission’s main function is to conduct elections fought by political parties and their members.

The CEC and ECs have several election-related functions wherein they deal with political parties more closely such as delimitation of electoral constituencies, recognition of national and regional-level political parties, fixing of election schedules, observance of the model code of conduct by candidates and political parties, dealing with various kinds of election disputes, complaints of non-observance of the upper limits of election expenses, etc.

The Election Commissioners have to act as impartial and neutral umpires in their several such election-related functions. Some of these functions are also of a quasi-judicial nature and the members of the Election Commission must not only be fair and impartial but appear to be so. Their political neutrality must be above suspicion.

Unfortunately, of late certain developments have taken place which, if not properly addressed, may adversely affect the present clean image of the Election Commission. An example of the worrisome developments is that one CEC (M.S. Gill) shortly after his retirement reportedly joined the Congress and was later appointed as a Central minister. The individual concerned may have been above board and his appointment may have been intended to benefit the country given his expertise and knowledge.

However, his appointment as a Minister did invite criticism from both the public and the media for being prejudicial to the independence and impartiality of the Commission. It has the risk of politicisation of the Election Commission. Any possible temptation to get retirement favours by members of the Commission by obliging any political party ought to be removed to protect the “independence and political impartiality” of the Election Commission.

In another recent case CEC, N Gopalaswaami reportedly has written to the President of India, this January recommending the removal of his colleague Election Commissioner Navin Chawala for allegedly being partial to a political party in some cases handled by the Commission. The matter was still to be decided at the time of writing. However, this incident too has adversely affected the clean image of the Election Commission.

As a remedial measure therefore, like the CAG and the CVC, the CEC and the ECs should also be made ineligible for any post retirement public offices. In addition, the CEC and the ECs because of the political nature of their jobs should also be debarred from joining or becoming members of any political party or for being appointed as ministers or to contest any election to the Parliament or State legislatures or for the offices of the President, Vice-President for some reasonable period, which may be five years after retirement.

The debarment in all fairness should neither be permanent nor for any unduly long period making such assignments unattractive to otherwise suitable and deserving persons. No one should by law be permanently deprived of political or other prestigious public assignments on merits. Therefore, a five-year ineligibility period of “cooling of” is reasonably long to avoid any temptation of reward and at the same time not too long a waiting period to get on merit higher assignments, if any in future.

 In fact, this post-retirement debarment period should apply to other posts like the CAG and CVC also for the sake of uniformity, justice and fair play. --INFA

(Copyright, India News and Feature Alliance)


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