Monday, August 13, 2007

The status of Election Commissioners vis-a-vis the Chief Election Commissioner

As we near Independence Day, the papers are full of retrospective pieces, and the talking heads are holding forth on what makes India tick. One institution which is now credited with playing a significant part in holding constitutional democracy together in India is the Election Commission ("EC"). The EC is an interesting institution, which has come into prominence only since the early 1990s, around the time TN Seshan was appointed the Chief Election Commissioner ("CEC"). Clearly, Seshan had much to do with its transformation into a proactive custodian of constitutional democracy in India. The Supreme Court has also had a role in this story, and has alternatively backed and rebuked Election Commissioners who have played hardball. Another regular feature of the functioning of the EC has been a tendency for the CEC to squabble with other Election Commissioners (recall the unseemly struggles between Seshan on the one hand, and MS Gill and GVG Krishnamurthy on the other).

It would seem that this cycle of events continues. Today's Hindustan Times carries a column by Pankaj Vohra which focuses on what he terms a "constitutional crisis" allegedly caused by the current CEC, N. Gopalaswamy's claim that "Article 324 (5) of the Constitution gives him the power to remove an Election Commissioner." Vohra explains the background of the controversy:

"The crisis has developed following the pending demand of the NDA for the removal of Navin Chawla as an Election Commissioner. The Supreme Court had last week allowed BJP leader Jaswant Singh to withdraw his petition against Chawla. The court had ruled that it was allowing the petitioners to withdraw the petition without expressing any opinion on the CEC’s powers vis-a-vis his fellow Election Commissioners. However, the confusion started with Gopalaswamy claiming in an affidavit that he had suo motu powers to act against his fellow Election Commissioners.

This position is also a departure from the stand taken by former CEC B.B. Tandon, apparently after he sought the best legal advice — that he did not have suo motu jurisdiction over his colleagues. Tandon had inferred this after 205 MPs had gone to the President against Chawla and a copy of the petition was handed over to him by BJP leader, V.K. Malhotra. It can be safely presumed that after going through every aspect of the matter, Tandon concluded that the CEC could not act suo motu and must wait for the President to forward such a petition and, therefore, refrain from initiating an inquiry on his own. The fall-out is that in the said matter, if the CEC entertains any petition officially, he will be reduced to a minority. Therefore, his recommendation will be a minority recommendation and not the view of the full commission. Thus, it will have no grounds to be entertained. Even in the Seshan case where the former CEC tried to humiliate his then colleagues M.S. Gill and G.V.G. Krishnamurthy repeatedly, the apex court had put Seshan in his place and had defined the powers of the other two making them equal in all respects in the conduct of the commission except administrative matters. Anybody else in Seshan’s place would have resigned after the severe strictures passed by the Supreme Court."

Vohra's analysis is substantially similar to that contained in this Hindu article which appeared in its issue dated Aug 11, 2007. The Hindu piece in turn elicited this response from CEC Gopalaswami, who clarified that he had never claimed the power to remove an Election Commissioner, but had only noted, following from the proviso to Article 324 (5), that while contemplating action against an Election Commissioner, the opinion of the CEC would have to be sought.

In his piece, Vohra makes the following persuasive point about the implications of the current controversy:

"While it is for the legal eagles to fight over the finer points of the various interpretations, the controversy is lowering the image of the Election Commission. While Chawla is being accused of being close to the Congress, Gopalaswamy’s detractors claim that he was acting in this manner because of pressure from the BJP, in whose government he was the Home Secretary under L.K. Advani. There are also allegations that Gopalaswamy’s proximity to Advani goes back to when the latter was the I&B Minister during the Janata Party rule.

However, all these charges are not doing any good to our system. One has to see how Chawla and Gopalaswamy conduct themselves while holding their august offices. It is not Gopalaswamy vs Chawla or the BJP vs the Congress. The ambiguity over the power-sharing and the role of the CEC vis-a-vis the ECs needs to be defined once and for all. It is not a case of individuals squabbling but a case where the role of functionaries appointed as per our Constitution has to be defined."

While Vohra may be right in making this point, his legal analysis, like that of the Hindu correspondent to whom the CEC responded, may not be spot on. The CEC is probably right in pointing out that whatever be the provisions of the 1993 Act, the situation is still governed by the relevant provision in the Constitution. An analysis of the provisions of the Chief Election Commissioner and other Election Commissioners (Conditions of Service Act), 1991 (the full text of which is available at India Code) shows that that law is not attracted in a situation where an Election Commissioner is sought to be removed (as in the present case, involving Navin Chawla), and actually has a fairly limited scope.

Article 324, as originally drafted and as it stands today, clearly does provide that while considering action against any Election Commissioner, the CEC's view has to be taken into account. Relying only on the text of the provision, it is possible to argue that it places the CEC in a higher position than the other Election Commissioners. Indeed, this is exactly the interpretation arrived at by a two judge bench of the Supreme Court after perusing through the constitutional history of the provision in S.S. Dhanoa v. Union of India, AIR 1991 SC 1745.

Vohra relies on the ruling of the Constitution Bench of the Supreme Court in T.N. Seshan v. Union of India, (1995) 4 SCC 611, where the Supreme Court did modify the understanding of the role of the other Election Commissioners as it had been set out in the Dhanoa case. However, that ruling is better understood in the context of the bickering between Seshan and his fellow Election Commissioners, and was clearly an attempt by the Court to rein in the high-handed behaviour of Seshan. The fact remains that though interpretations of the Constitution are supposed to endure, they are coloured by the facts against which such interpretation arises.

Leaving aside the often confusing precedents of the Supreme Court, if one were to rely on the text of the Constitution, and the drafting history of the provision in the Constituent Assembly (which have been, as noted earlier, closely examined and clearly set out in Justice Sawant's erudite judgment in the Dhanoa case), it seems clear that the CEC was intended to be first among equals within the EC. To underscore this point, Justice Sawant's judgment in Dhanoa (at para 14) draws an analogy between the role of the CEC and that of the Prime Minister vis-a-vis the other members of the Cabinet.

One may well argue that constitutional history and text have to be set off against arguments of prudence, rationality, and experience. Given that the EC has been a multi-member Commission for so long now, it would be a hindrance to its functioning if the CEC is given pervasive control over the functioning of the EC and can browbeat the other Commissioners. I can see problems with this argument as well, given that we know that governments often manipulate appointments to the EC keeping in mind the future electoral prospects of their respective political parties (this may sound like a conspiracy theory, but a reading of the Dhanoa case will show that such a fear is not unfounded). Given how difficult it is to remove a CEC by initiating
impeachment provisions, governments will always be tempted to "pack" the EC by appointing pliable individuals.

Whatever be the force of the view supporting equal status between the CEC and other Election Commissioners, in order for it to be effective, it must be incorporated by virtue of a constitutional amendment. The CEC is right in noting that the constitutional provision as it stands today favours his interpretation. I do, however, agree with Vohra that this ambiguous situation may need to be resolved clearly once and for all, lest we have more such episodes in future, where the ambiguity causes a loss in stature of the institution as a whole. The way to do so is by virtue of a constitutional amendment to clarify this issue, which in turn will provide an opportunity to debate the best possible way of securing ideal conditions of work in a multi-member Commission.

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