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Does the CEC have suo motu power to recommend removal of an EC?

I am writing this with reference to the first page news under your byline which appeared in The Hindu on January 31 on my recommendation to the Hon’ble President for the removal of EC Shri Navin Chawla. May I draw your attention to the conversation we had on the previous day when you asked for confirmation of my sending a report and the reason for one year delay and I had clarified that 6 months out of that was attributable to Shri Chawla himself. Despite that you wrote “took a whole year...” When I pointed out to that on Feb. 1, you told me that you had mentioned it but I regret to say it was not.

I had also taken exception to the remarks “curiously received them in his chambers instead of scheduling a formal meeting of the three-member Election Commission to hear them out.” Your observation was surprising inasmuch as the petition was addressed to the CEC, it was against one Commissioner, the third Commissioner was not concerned with it and there was therefore no question of the CEC receiving it [in] any manner other than all by myself.

You also wrote: “Mr. Gopalaswami departed from precedent to claim that the CEC had suo motu powers.” Pray what precedent? As regards my departing from my predecessor’s views on this issue, on August 11, 2007, I had answered your paper’s report on this point by quoting Shri Chawla’s own stand supporting my contention. Shri Chawla’s affidavit in the case confirms that the CEC’s recommendation was a condition precedent for the appointing authority to consider removal of an EC and I quote “However... a clear recommendation from the Chief Election Commissioner (CEC) recommending the removal is also a condition precedent and must exist.” As regards suo motu powers of the CEC, Shri Chawla himself not only concedes that but in fact goes further to say that CEC’s credentials will be suspect if he didn’t. I quote from Shri Chawla’s written argument in the Supreme Court case: “A Chief Election Commissioner knowing from his personal knowledge that an Election Commissioner is unfit to hold that office must be thoroughly incompetent or corrupt himself, if he takes no action at all. The assertion of Respondent No. 3 that he would not have taken action unless his comments were called for by the President is wholly untenable” (emphasis added).

May I also mention here that during our telecon on January 30, I had recalled to you that I had shared with you over lunch information on the several instances of Shri Chawla’s partisanship on December 27, 2007 and you had confirmed it.

I am writing this to correct the impression the readers of your esteemed daily may have after reading the series of stories that your esteemed daily ran starting from January 31, wherein an effort appears to have been made to project facts which support the ‘no suo motu power’ theory. That ignores Shri Chawla’s own contention strongly supporting the existence of suo motu powers with the CEC in the case before the Supreme Court. Further, I draw your attention to what the Supreme Court said in its order of Aug. 7, 2007 in that case: “That CEC has no power of suo motu recommendation whether binding on the President or not is already negatived by binding judgements.” The very fact that many eminent jurists have taken a similar view goes to show that the existence of suo motu power is equally plausible.

May I request you to kindly publish the contents of this letter with the same prominence as you have given to the contrary view so as to bring full facts for the information of your readers who can then judge things for themselves.

Since the issues raised by Chief Election Commissioner N. Gopalaswami in his letter relate mainly to facts, it is necessary to respond to them in some detail by laying out the relevant facts assembled in our investigation:

Timing and delay

Para 1: The CEC’s explanation for the one-year delay in his suo motu processing of the petition he received from a Bharatiya Janata Party delegation is factually inaccurate and misleading. As I have shown in an article, “Gopalaswami’s claims on timing of missive are seriously misleading,” published on page 1 of The Hindu of February 3, 2009 a careful, item-by-item verification of the CEC’s claims on what happened between January 30, 2008, when the BJP delegation presented its allegations, and January 12, 2009, when the CEC sent his recommendation to the President, leads to the following conclusion: “More than half the delay is explained by Mr. Gopalaswami’s keeping the BJP’s petition to himself between January 30 and July 20, 2008. Secondly, the timing is to be explained by the CEC’s overbearing insistence, in tandem with the BJP’s strident stance, that he had the power under Article 324(5) of the Constitution to conduct an inquiry against an Election Commissioner, and make a suo motu recommendation on his removal.”

As the article pointed out, this “usurpation of authority” flew in the face of the Supreme Court’s judgment in the Seshan case (1995); completely reversed the stand taken in June 2006 by Mr. Gopalaswami’s predecessor, B.B. Tandon; and explicitly went against the legal opinion (also published in The Hindu of February 3, 2009) given to Mr. Tandon by Ashok H. Desai, senior advocate and former Attorney-General for India.

The article also established that when the CEC — following his unexplained six-month delay — sent the BJP’s allegations to Mr. Chawla and asked for a response, he did not have to wait long. The Election Commissioner sent him a detailed and constitutionally substantive reply on September 12, 2008 and subsequently forwarded Law Secretary T.K. Viswanathan’s letter that affirmed that the CEC did not have suo motu powers of recommendation under Article 324(5). As my second article, “How Chief Election Commissioner pursued BJP allegations,” published in the Op-Ed page on February 3, 2009 pointed out, Mr. Chawla’s letter of December 10, 2008 was only a reiteration of the constitutional points he made in his reply of September 12 plus a rejection of the BJP’s allegations as “motivated and entirely baseless.”

Mr. Gopalaswami refers to telephonic conversations we had on January 30, 2009 and February 1, 2009 that I understood to be off-the-record (which is why I did not quote him). I do not want to comment on what he claims was said except to point out that after our Delhi bureau got in touch with the CEC to verify the information I had, he telephoned me and gave me background and details that I appreciated because they made the story we published on January 31, 2009 more informative and meaningful.

Meeting in chambers

Para 2: Meeting the BJP delegation in his chambers was clearly an action that flowed from this CEC’s stand that he had, under Article 324(5), suo motu power to conduct an inquiry against an EC and make a recommendation for removal. But that the CEC has no such suo motu power under Article 324(5) is the widely accepted view of constitutional experts. It also makes democratic sense, as Justice S. Mohan, retired Judge of the Supreme Court, shows in his article “Chief Election Commissioner: equal or superior?” published in The Hindu of February 9, 2009: “…it is logical to conclude that if the Election Commission is to function as a body, such suo motu recommendation by the CEC would nullify the function of the Commission. The Election Commissioners will be more interested in dancing to the tune of Chief Election Commissioner and try to be in his good books. This cannot be the intent of the Constitution under Article 324(5).” Going by this view, meeting the BJP delegation in chambers instead of convening a full meeting of the three-member Election Commission was out of line.

What precedent?

Para 3: The departure from precedent is indisputable for the simple reason that no previous CEC, not even T.N. Seshan, took the position Mr. Gopalaswami did in his affidavit filed in the Supreme Court in August 2007. As I pointed out in my story of January 31, 2009, while Mr. Gopalaswami interpreted his predecessor’s view as being the same as his, Mr. Tandon’s view was shaped by Mr. Desai’s opinion. That clearly held that under Article 324(5), “the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an EC.”

Let me also quote from Mr. Tandon’s counter affidavit of June 2006 filed in the Supreme Court: “Since the President is the appointing authority, the removal can only be by the President. But the condition precedent to the removal of an EC is that he can be removed only on the recommendation of the CEC. If a complaint or petition by any person or group of persons is addressed to the President, seeking removal of an EC, CEC comes into the picture only when such complaint or petition is referred by the President to CEC for his recommendation in the matter. It is submitted that CEC cannot act on his own on such complaint or petition and must await reference from the President to be able to act on the complaint or petition seeking the removal of an EC.” Mr. Gopalaswami interprets his predecessor’s stand to relate specifically to a petition addressed to the President and not received officially by the CEC. A reading of Mr. Desai’s opinion, on which Mr. Tandon based his stand, makes it clear that it makes no such distinction. It holds absolutely that “the condition precedent to the removal of an EC is that he can be removed only on the recommendation of the CEC on a petition addressed to the President” and that “the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an EC.”

Mr. Gopalaswami’s version of Mr. Chawla’s stand in a 43-page counter affidavit filed in the Supreme Court in June 2006 is highly misleading. He quotes one sentence from the affidavit on the CEC’s recommendation being a condition precedent for the removal of an EC but not this clear assertion in page 17 of the affidavit: “I therefore submit that in terms of Art. 324(5) of the Constitution of India, the recommendation of the Chief Election Commissioner becomes relevant only in an instance where the appointing authority, i.e., the President (acting on the aid and advice of the Council of Ministers) takes a decision to remove an Election Commissioner. I submit that, however, the recommendation of the Chief Election Commissioner is neither binding nor mandatory, definitely is not contemplated while considering the appointment of an Election Commissioner.”

The quotation on the incompetence or corruption of a CEC not taking any action despite “knowing from his personal knowledge” that an EC was unfit to hold that office is from a written submission made in the Supreme Court by senior advocate Ram Jethmalani on behalf of Mr. Chawla. The context of this statement is Mr. Jethmalani’s point that Mr. Tandon “was in office for more than a year after the Memorandum reached him and yet took no action of any kind. It only means that the conduct of the Respondent [Mr. Chawla] was wholly proper and called for no adverse comments or report. It is no longer denied that all the actions of the Commission after this Respondent’s appointment have been unanimous.” To conclude from this that Mr. Chawla concedes suo motu powers to the CEC under Article 324(5) is to go against all the material available, including Mr. Chawla’s affidavit, his detailed reply of September 12, 2008, his forwarding to the CEC of the Law Secretary’s clarification of November 7, 2008, and his final letter of December 10, 2008. In any case, what position Mr. Chawla or even Mr. Tandon took on the question of suo motu powers under Article 324(5) is far less important than the constitutional provision itself.

Off-the-record interactions

Para 4: There is no need for me to comment on claims about what was said or not said in off-the-record conversations. What I can say is that in my regular interactions with him over many months, this CEC was extremely forthcoming (a quality journalists everywhere appreciate). For his own reasons, Mr. Gopalaswami has chosen not to mention the repeated opinion I expressed to him that, especially given the creditable overall performance of the Election Commission and its good external or public image, he should take the initiative to unify the Commission and remove the bad blood that affected its internal functioning.

What the Supreme Court said

Para 5: The sentence quoted by Mr. Gopalaswami is in the paragraph of the Supreme Court’s order summing up Mr. Jethmalani’s arguments. It remains to be explained or corrected in view of the senior lawyer’s contention reported in the previous sentence that “the Chief Election Commissioner has no power to make any recommendations under Second Proviso to Article 324(5) except on a reference made to it by the President of India while considering the removal of an Election Commissioner.” To say that this is what “the Supreme Court said in its order of Aug. 7, 2007 in that case” is contrary to facts and misleading.

It is absolutely clear that the two-member bench (Justices Ashok Bhan and V.S. Sirpurkar) of the Supreme Court, in its order of August 7, 2007 allowing the withdrawal of Jaswant Singh’s petition, did not express any opinion on the constitutionality of the suo motu powers claimed under Article 324(5) by the BJP and Mr. Gopalaswami. The August 7, 2007 order could not have been clearer than this: “The permission to withdraw the writ petition 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.”

For background, let me quote from our Legal Correspondent’s report, published in The Hindu of August 8, 2007: “Appearing for the Centre, Additional Solicitor-General Gopal Subramaniam contended that the CEC could not act suo motu in the matter. He argued that the Centre alone could proceed to take action against [an] Election Commissioner. He said this was a peculiar case where the CEC had filed an affidavit. And the petitioners, after withdrawing their petitions, would file a fresh representation before the CEC…the affidavit of the CEC was silent on the role of the Government, he said. The Bench told the Additional Solicitor-General: ‘We are not deciding the issue whether CEC has the power or not. We cannot stop anybody from filing the representation before the CEC but you can challenge the decisions taken by CEC on the representation. If the CEC commits [a] mistake then you can come to the court. We would then decide the matter.’”

What emerges from all this is that the issues figuring in l’affaire Gopalaswami vs Chawla go beyond individuals. They relate to the future of an institution, the Election Commission of India, created by the Constitution, mediated and strengthened by judicial interpretation as well as by executive decisions and legislative change, and vital to the functioning of elective democracy. What is also clear is that the institution needs reform.

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