Open Forum
New Delhi, 24 February 2009
Gopalaswami-Chawla Row
EC’s IMPARTIALITY CRUCIAL
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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