COMMENTARY
Free and Fair Election Commissioners?
Sriram Panchu
said, is insulated from removal and the ECs are assured of independence since “they cannot be removed except on the recommendation of the CEC”. The Court observed that this privilege has been conferred on the CEC to ensure that the ECs “are not at the mercy of political and ex-
A number of institutions and actors are responsible for the ugly controversy on the position of Election Commissioner Navin Chawla. The Supreme Court for not giving a clear view on the power of the chief election commissioner to recommend action against an EC, CEC N Gopalaswami himself for taking so long to decide on the petition seeking Chawla’s dismissal and the central government for having in the first place appointed an individual, who was clearly unfit for a constitutional post. Can we expect the government to now do the right thing and restore the integrity of the Election Commission of India?
A shorter version of this article was first published in New Indian Express, 13 February 2009.
Sriram Panchu (sriram2001@vsnl.in ) is senior advocate, Madras High Court.
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The genesis of this episode is a 2006 petition presented to the president by Leader of the Opposition L K Advani and over 200 members of Parliament (MPs) seeking removal of Chawla as an EC. A copy of this was sent to the CEC. No action having been taken by the government, Jaswant Singh of the Bharatiya Janata Party (BJP) filed a case in the Supreme Court. Before the Court, Gopalaswami submitted that as CEC he had the authority suo motu to r ecommend removal of an EC. The CEC’s stand was contested by the central government. The BJP sought the Court’s permission to withdraw its case and submit its petition to the CEC; the Court granted this in August 2007. Months thereafter, on 30 January 2008 (one year before the CEC’s order), the BJP petitioned the CEC for the removal of Navin Chawla.
Constitutional Provisions
Article 324 of the Constitution states that the superintendence, direction and control of elections is to be vested in an Election Commission, consisting of the CEC and such other ECs to be appointed by the president. It provides that the CEC may be removed from office only in the manner (impeachment) and on the grounds (proven misbehaviour or incapacity) applicable to a judge of the Supreme Court. With regard to the ECs, however, the Article provides only that their removal shall not take place except on the recommendation of the CEC.
In a 1995 decision in T N Seshan vs U nion of India the Supreme Court explained the scheme of Article 324. The CEC, the Court ecutive bosses of the day”.
Supreme Court Silence
Thus far there is clarity. The ECs can be removed only on the recommendation of the CEC. But for such a recommendation to flow, must the matter be referred by the president to the CEC, or can he/she act suo motu? Article 324 is silent on this aspect, but the silence is significant; there is no express requirement that a presidential reference is necessary for the CEC to consider the issue. The absence of judicial interpretation and guidance must be laid at the door of the Supreme Court. This issue was squarely before it in Seshan’s case. Parties had taken contrary and contentious stands on the question. The CEC had clearly staked out his unfettered territory, the government wanted that it should exercise a prior screening right. It was clear that unless the Court decided the point, both would do exactly as they had indicated to the Court.
The Court, however, merely stated that “The permission to withdraw the writ p etition shall not be taken as an expression of opinion on the part of this Court regarding the questions involved. All questions and contentions of the parties are left open.”
Normally, the practice of the Court is to accede to the request of a party which wishes to withdraw its case to file it before a nother forum. However, the Court does have discretion in the matter and can well refuse permission. This case was one such; the issue was an important one and the law was unclear. By leaving the question undecided the Court was virtually inviting dispute at a later day, which has now dawned. Indeed, timely judicial exercise would have saved this constitutional crisis.
The legal position being in penumbra, Gopalaswami cannot be accused of having violated statute or precedent in exercising his power of recommendation sans a
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r eference. And indeed, there may be good reason not to limit the CEC’s power here. The Supreme Court has said that such power should be exercised only when there are valid reasons, which are conducive to the efficient functioning of the EC. It is the CEC who will be in the know of this better than anyone else. A political executive will not refer a complaint about an EC favourably disposed to it; this will render at naught the constitutional scheme of leaving it to the CEC to determine in the first place if there are good reasons why an EC should not continue. If the political or executive bosses do not have the power to unilaterally remove ECs, they should likewise not have the power to prevent consideration by the CEC of circumstances warranting removal. To give them such power would amount to stifling the operation of this part of Article 324, whose scheme gives the CEC the most crucial role, a privilege as the Supreme Court termed it. And consider a situation where the CEC gets first-hand knowledge of wrongdoing of the EC; is he/she expected to make a request to the president to refer the matter to himself?
Two Contra Arguments
Two arguments are set forth for the contrary position. One is that the CEC does not enjoy a status superior to the ECs, as held by the Supreme Court in Seshan’s case. The second is that petitions could be filed by smaller groups or even individuals, and “it is difficult to see how the CEC can act suo motu on such complaints without awaiting a formal reference”. (Extract from the 12 April 2006 opinion of the then Attorney General Ashok H Desai to the then CEC B B Tandon, on the petition to remove Chawla.) As to the first, the CEC’s power to recommend removal of an EC does not flow from a claim of higher status; it flows from a specific constitutional power. The second argument, which the former attorney general termed as a “pragmatic approach” flows from a principle of interpretation which seeks to resolve ambiguity by assessing the workability of a conclusion. Testing this pragmatic approach, it is, of course, entirely possible that petitions may be received from smaller groups and individuals. What matters, however, is the nature and content of the
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information, and whether it is reliable and can be verified. The source of the information should not be the determinative criteria to define the CEC’s power, nor is information less valuable or verifiable because it comes from a few people or even one person. A well-respected person may have crucial information warranting an EC’s r emoval; that may well have greater weight in our eyes than a petition from a political party which will have its own ends and motives. Rather than leave it to political worthies, we are better off t rusting the CEC to give short shrift to u nfounded allegations.
CEC Delay
However, the CEC deserves to be faulted on the timing of his recommendation. A fter receiving the BJP’s petition in January 2008 he waited till July of the year to start the process of calling for the EC’s response. His reason that he did not want this issue to be seen as pressurising Chawla over the timing of the Karnataka election (the two had differences over this) does not hold water. Constitutional functions must supersede other considerations. Gopala swami has landed the Election Commission of India in controversy at the most inappropriate time. With the next general elections scheduled for April-May this year, the last thing we needed was an imbroglio over the worthiness of his successor, since Gopalaswami demits office on 20 April.
Chawla in the Emergency
The CEC’s reasons for his recommendation are not yet public knowledge. One thing, however, is clear. Navin Chawla should never have been appointed as EC in the first place. He was secretary to Delhi’s Lt Governor during the Emergency (1975-77) and was charged with various misdeeds including illegal detention orders under the Maintenance of Internal Security Act (MISA) and treatment of detenus in jails. One person marked for continued detention was Premila Lewis who had the audacity to lead an agitation for minimum wages for labour working in Prime Minister Indira Gandhi’s farm. The Commission of Inquiry consisting of J C Shah, former Chief Justice of India, upheld the charges against C hawla and concluded that he was “unfit to hold any public office which d emands an
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a ttitude of fair play and consideration for others”. This damning indictment is of special relevance; unless he is removed or resigns, Chawla will head the body charged with ensuring fair play in our elections.
Thirty-two years have passed since the Emergency, and it might well be said that he is a reformed man. His association with Mother Teresa gave us encouragement to believe so. Unfortunately, the spots have not dropped from the leopard. Chawla’s closeness with the Congress Party manifested itself again in recent years when the educational trust run by his wife and him received money from the allotted funds of several prominent Congress MPs, and was also the recipient of six acres of land in R ajasthan when the Congress was in p ower there. From newspaper reports it appears that the CEC has, in addition to the Chawla trust, focused on the EC’s a lleged partisanship in the issues of the Karnataka election and the petition to d isqualify Sonia Gandhi as an MP for a ccepting a f oreign honorary title.
The CEC’s recommendation is not conclusive or binding. The president must take action on it. Our parliamentary system mandates that the president act on the advice of the council of ministers; a school of thought, however, exists to say that in cases such as this the president must exercise the power herself. The CEC’s communication is in pursuance of a constitutional power. It makes serious charges and must be seriously considered. The Supreme Court said that the CEC’s recommendation for removal must be based on intelligible and cogent considerations having relation to the effective functioning of the EC, and not on whim or caprice. It stands to reason that if it satisfies these criteria, it should be accepted and implemented. Refusal to do so may be tested before the Court.
The recommendation must be considered on merits; it cannot be brushed aside on account of its timing, however objectionable that may be. Nor will the country be satisfied with legal wrangling as to whether CEC Gopalaswami should have waited for a reference before sending in his missive. The heart of the matter is that elections are the lifeblood of our democracy; the 15th general elections will take place soon. Those who are going to control them, ECs with the CEC foremost, must be
COMMENTARY
above suspicion. Chawla’s actions must not only be, but also be seen to be, fair and free of favour. He may pass the first test, but given the circumstances here, the s econd is too high a bar for him to clear. Prudence and purity of elections would suggest Chawla’s exit, honourably by r esignation or regrettably by removal.
As for the Union of India, it may recollect what the Supreme Court said about it in S S Dhanoa’s case, which involved the abolition of the posts of earlier ECs. The judges said that they
expected the Union of India to candidly a dmit the initial mistake of making the said a ppointments rather than defend them on
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non-existent grounds. It appears that there is an impression in some quarters that if the government admits its mistake whether it is committed by the same government or the earlier government, it loses face. Nothing can be farther from reality. In a democratic regime, the government represents the people. It adds to its respectability and credibility, if the government also owns its mistakes frankly.
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