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| UPA must leave poll panel alone | | |
Sandhya Jain
Given its position that Chief Election Commissioner N Gopalaswami lacks the authority to recommend the removal of Election Commissioner Navin Chawla without a presidential reference, and the Law Minister’s bald assertion that Mr Chawla will most likely be elevated as CEC in view of his current seniority, it is not surprising that the UPA has decided not to act upon Mr Gopalaswami’s January 16 letters to President Pratibha Patil.
One letter detailed the reasons for urging Mr Chawla’s removal as Election Commissioner; Press reports suggest Mr Gopalaswami listed instances of pro-Congress bias. These include differences over the conduct of the Gujarat, Himachal Pradesh and Karnataka Assembly elections, and the Election Commission’s decision to send a notice to Congress president Sonia Gandhi on the acceptance of an honour from the Belgian Government. Reportedly, the Election Commission’s internal deliberations were being leaked to the Government, which resulted in phone calls to the CEC and even the visit of the Prime Minister’s Principal Secretary.
Given the nature of the charges, many jurists and analysts feel the full text of Mr Gopalaswami’s letter should be made public. This would be apt, as the conduct of officials in constitutional posts, especially amid allegations of bias, is a matter of popular concern. Public anxieties are only aggravated when Union Ministers like Mr Hansraj Bhardwaj aggressively attack the CEC and insist that Mr Chawla will be promoted on Mr Gopalaswami’s retirement on April 20.
Mr Gopalaswami’s second missive to the President addresses the issue of the Election Commission’s neutrality and independence. In the recent past, one CEC wanted to become President of the Republic; another CEC is content to serve the ruling coalition as a Minister of State, thus gravely diminishing the office. Mr Gopalaswami’s suggestion that rules be amended to ensure that no retired CEC or EC can join any political party for 10 years after demitting office is flawless. It is appropriate as the era of single-party Government is over; hence, a politically unaligned Election Commission is imperative.
The conduct of the Union Law Ministry leaves much to be desired. The very appointment of Mr Chawla as Election Commissioner is questionable in view of his proximity to certain Congress leaders, which led to adverse comments by the Shah Commission. The BJP has levelled various charges of political bias against Mr Chawla.
Within the Election Commission, tension has been simmering ever since Mr Gopalaswami filed an affidavit in the Supreme Court in mid-2007, claiming power to recommend the removal of a colleague without a presidential reference, which led the BJP to withdraw its petition before the apex court. It is pertinent that the Law Minister, who is now hyperventillating about his powers over the Election Commission, did not implead his Ministry as a party to the case to settle the issue of the CEC’s authority in this respect.
Pro-Government commentators have questioned the timing of Mr Gopalaswami’s bombshell, just prior to the general election and his retirement from office. The CEC has since explained the delay in acting upon the BJP’s petition of January 30, 2008; what concerns us, therefore, is the issue of his powers under Article 324 (5) to make a suo motu recommendation.
Mr Bhardwaj has argued that the CEC and the two ECs are equal, and that the CEC is merely an administrative head. Yet the Constitution makes a clear distinction between the CEC and the ECs; the CEC can be removed only through the process of impeachment similar to that applicable to judges of the Supreme Court and the High Courts, so that the office is insulated from political interference.
But ECs and Regional Commissioners in States can be removed only on the recommendation of the CEC, which clearly establishes that they are not equals. As the Constitution nowhere suggests the CEC can make recommendations only on a reference from the Government, the objection to a suo motu recommendation by Mr Gopalaswami is null and void. Commenting on the removal of ECs, BR Ambedkar had told the Constituent Assembly, “The President can only act on the recommendation of the Chief Election Commissioner” and this was “a very important limitation” on the President’s powers.
The crux of the matter, therefore, is whether the CEC’s recommendation is binding or can be rejected by the Government of the day. The Supreme Court in the case of Mr TN Seshan had inter alia observed that the Constitution had limited the power of Parliament in order to protect the independence of the CEC from political and/ or executive interference. The ECs and RCs cannot be removed from office except on the recommendation of the CEC to ensure their independence.
Whichever way one looks at this, the power to remove the CEC or any EC or RC is denied to the executive in order to safeguard the independence of these functionaries and of the Election Commission as a body. It stands to reason, therefore, that the Government cannot decide the fate of an EC in opposition to the recommendations of the CEC, as that would negate the constitutional provision that an EC “shall not be removed from office except on the recommendation of the CEC”.
Thus, we may aver that the letter and spirit of Article 324 (5) suggests the CEC’s recommendation is binding upon the Government unless there are very cogent and convincing reasons for rejecting it. These decisions should be transparent, and it would be in the fitness of things for the Government to first make known the reasons cited by the CEC for the removal of Mr Chawla. The dignity and credibility of a constitutional body and a constitutional office are at stake.
Meanwhile, shattered public confidence would be restored if the Government were to refrain from appointing Mr Chawla as CEC, as he is widely perceived as being biased in favour of the Congress. The credibility of the general election would also be maintained if the entire process is completed within the tenure of the entire extant Election Commission, without stretching the process unduly, as suggested by the CPI(M) leader, Mr Sitaram Yechury, at a recent all-party meeting convened by the poll panel.
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