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Shocking constitutional overreach

The “recommendation” of Chief Election Commissioner N. Gopalaswami to the President that Election Commissioner Navin Chawla should be removed on the ground of bias is a gross constitutional overreach that is shocking to the democratic conscience. In the crucial weeks before the general election, it has provoked needless hostility and brought a political twist and divisions into the Election Commission. The Commission is a high constitutional body whose members are expected to rise above partisan sentiments and function with objectivity and distance from political players. It could certainly have done without a controversy of this sort. The recommendation itself was triggered by a petition filed by the Bharatiya Janata Party and stems from a misreading of the constitutional scheme of things. Under Article 324, the CEC is appointed by the President (that is, the political executive) and cannot be removed except by impeachment as in the case of a Supreme Court judge. The Election Commissioners too are appointed by the President and cannot be removed except on the recommendation of the CEC. Considering the scheme of Article 324 as a whole, Chief Election Commissioner B.B. Tandon and the Election Commission took the provisions to mean that since the appointing authority is the President, the CEC comes into the picture only when a proposal for the removal of an Election Commissioner comes before him from the President for his recommendation. This was, in fact, supported by the opinion former Attorney General Ashok Desai gave the Election Commission in which he was categorical that the CEC cannot initiate action against an Election Commissioner suo motu. The Law Ministry too was of the same view. Early signs that all was not well within the Election Commission came in mid-2007 when Mr. Gopalaswami filed an affidavit in the Supreme Court claiming the power to recommend an Election Commissioner’s removal even without any reference from the President. The court was hearing a petition filed by the BJP for Mr. Chawla’s removal. The claim of suo motu powers was a clear and unexplained departure from the position the Election Commission had taken all along, and the present recommendation rests on that shaky premise.

What makes the CEC’s action particularly colourable is that it meets the demand raised in the BJP’s petition — submitted first to the President, then filed in the Supreme Court, only to be withdrawn and submitted to the CEC himself in January 2008. Ostensibly, though, the CEC’s “report” rests the decision on different grounds. The BJP had asked for Mr. Chawla’s removal on the alleged ground that he was tainted by his past association with the Congress party and could not function in an unbiased manner. While ignoring his alleged past associations, the CEC has now read bias into Mr. Chawla’s specific opinions on the timing and manner of conducting elections in some States. The grounds alleged appear to be differences of opinion rather than any grave prejudice or misconduct. They have nothing to do with the standard laid down by the Supreme Court when it observed in T.N. Seshan, Chief Election Commissioner v Union of India (1995): “Of course, the recommendation for removal must be based on intelligible and cogent considerations which would have a relation to the efficient functioning of the Election Commission.” The Court also pointed out that the power was conferred on the CEC to ensure that the Election Commissioners were not at the mercy of the political executive. It was a check on the executive’s powers and a safeguard of the independence of the Election Commission as a whole. The Court went on to caution: “If therefore the power were to be exercised by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the Election Commissioners and the Regional Commissioners if they are required to function under the threat of the CEC recommending their removal.” This fear of capricious action and of the protector turning tormentor has now come to pass with Mr. Gopalaswami’s recommendation.

It needs hardly be emphasised that the Election Commissioners cannot function effectively and independently if they are to live in fear of the CEC recommending their removal for one reason or another, including merely differing with him on some issue. They cannot perform their constitutional functions if the CEC continually entertains petitions against them from political parties and other groups. Even during the later period of T.N. Seshan as Chief Election Commissioner, when bitter and open conflict raged within the Election Commission, he did not think he could invoke the power to recommend the removal of an Election Commissioner. It is indeed inexplicable that an experienced administrator like Mr. Gopalaswami should have chosen to act in a way that is neither constitutional nor fair. The saving grace is that the President is not bound to accept the recommendation, particularly as it is untenable on the face of it and unwarranted in the circumstances. Nevertheless it is bound to leave deep scars on the Election Commission’s institutional credibility and collective functioning.

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Uppiliappan Temple Blackburn
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