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Time for equanimity at Nirvachan Sadan

Harish Khare

The maturity and wisdom with which the BJP's memorandum on Election Commissioner Navin Chawla is handled will probably help deepen lawful governance.

THE PRESIDENT has forwarded to the Prime Minister the National Democratic Alliance's memorandum against Election Commissioner Navin Chawla. The memorandum contends that Mr. Chawla invites disqualification as an Election Commissioner because he was associated with some trusts; and these trusts, in turn, raised funds in a manner that invites some questions.

Whereas the Constitution is clear about how a Chief Election Commissioner can be removed, it is not all that clear on how to deal with the case of an Election Commissioner who is sought to be removed. Article 324(5) merely says: "Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner."

Since the government is the appointing authority for the Election Commission, the President has done the correct thing in forwarding the memorandum on Mr. Chawla to the Prime Minister. And since the complaint against Mr. Chawla pertains to the time he was a civil servant, the Department of Personnel might be called upon to determine whether any rules or norms were violated. Now, a determination will have to be made whether Mr. Chawla's activities, before or after arriving at Nirvachan Sadan, render him unfit to perform his constitutional duties.

This is the first time since the Constitution came into existence in 1950 that the polity has been called upon to determine the suitability of an Election Commissioner. Is the President bound by the "recommendation" of the Chief Election Commissioner? Is the executive branch bound to refer each complaint against an Election Commissioner to the chief? Is the "recommendation" to be made by the Chief Election Commissioner by himself or by the Commission as a whole? If the matter does come up before the full Commission, will Mr. Chawla need to recuse himself?

These are difficult questions, with no precedent to go by. The maturity and wisdom with which the memorandum on Mr. Chawla is handled will probably help deepen lawful governance. To begin with, the Government will have to see to it that its inquiry passes the test of credibility and transparency.

However, since we live in an age when an inquiry is supposed to be impartial only if it arrives at a "guilty" verdict, it is unlikely that the controversy will be allowed to be sorted out in an impartial and objective manner, especially by the handful of people in the forefront of the anti-Chawla campaign. According to these campaigners, Mr. Chawla is too close to "10 Janpath" and hence must targeted. In all likelihood, the Election Commission will unfortunately be distracted from its institutional equanimity.

Informed sources suggest the Commission these days often finds itself divided two to one. The majority is generally made up of Chief Election Commissioner B.B. Tandon and Election Commissioner N. Gopalaswami. Mr. Tandon is due to retire on June 29 and a politically loaded question presents itself: will Mr. Gopalaswami become the next CEC? The government is not duty bound to elevate the senior-most Commissioner as the chief. However, the convention is clear and in favour of Mr. Gopalaswami getting the nod.

When J.M. Lyngdoh retired as CEC, the NDA government was not keen on elevating the senior-most Commissioner, T.S. Krishnamurthy. It had reportedly zeroed in on a former Cabinet Secretary, T.R. Prasad, as the CEC.

It was only a threat of resignation by the two Commissioners, Messrs Krishnamurthy and Tandon, that dissuaded the Vajpayee government from taking the precipitous step.

A larger issue is at work here: the quality and nature of relationship between bureaucrats and political leaders. Those appointed to constitutional positions (1) must behave as if they have exorcised themselves of past associations, if any; (2) and should be presumed (by the political crowd) to be committed to the system of lawful governance, as per the Constitution. Unfortunately, perceptions and partisanships often addle the ambience of requisite detachment and distance.

Wisdom demands that political partisans should not push an officer into subjectivity of any kind. This caveat will remain most relevant to the affairs of a vital constitutional authority, the Election Commission of India.

It all boils down to how those who come to occupy constitutional positions, with institutional autonomy, meticulously observe rules of detachment, fairness, and reasonableness. The Election Commission's claim to neutrality and objectivity has unfortunately been marred by some former Chief Election Commissioners accepting ties and associations with political parties and groups.

As it is, the Indian polity has become enmeshed in mindless divisiveness and it will be a great pity if the Election Commission and its Commissioners were to be subjected to and, since they are only human, give in to partisan passions of the moment.

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