Saturday, January 31, 2009

CEC's recommendation to remove Election Commissioner, Navin Chawla

N.Ram's scoop in The Hindu today has stirred up an interesting controversy,(and perhaps agonising as well, in view of its timing) and is likely to dominate public discourse in the coming days. The purpose of this post is to record some of the initial responses to the controversy, and also identify some of the issues involved. Ram's story does not discuss the grounds the CEC invokes for his recommendation; it merely says the CEC has relied on the conduct of his colleague during his current term as the EC, rather than on his so-called misconduct, the basis of the BJP's allegation against him. Therefore, Ram's story indicates that the CEC's recommendation has nothing to do with the BJP's complaint, even though it is reasonable for political observers to assume that but for the BJP's written complaint, the CEC would not have gone ahead with his recommendation.

Initial reports indicate that Chawla has refused to resign, while the CEC is reluctant to comment on Ram's story, let alone reveal the contents of his recommendation. Ram's story raises at least two specific issues. They are:

A. Can the CEC recommend EC's removal suo motu?

The CEC himself has taken the stand in his affidavit to the Supreme Court that he can. The CEC, according to Ram's story, claimed that he based himself on his own experience and observations of Mr. Chawla’s work as Election Commissioner. If the CEC takes the stand that he initiated his review of the EC's conduct as the EC after receiving a complaint from the BJP (even though he later rejected the BJP's allegations as irrelevant) it may not be very convincing. Therefore, it is useful to read his own affidavit to the Supreme Court, and Mr.Ashok Desai's legal opinion given to Mr.B.B.Tandon, his predecessor in April 2006, both of which I do not have presently, in order to throw light on how the CEC defends himself. In the absence of a complaint or a petition, there should have been a formal reference from the Executive to the CEC. As there is no formal reference, one can assume that the BJP's petition to the CEC led to his review of Chawla's conduct as the EC.

B. The SC's judgment in the T.N.Seshan case shows that the CEC's reasons for removal of an EC must be based on intelligible and cogent considerations. As we don't have a copy of the CEC's recommendation to the President, we can't yet say whether the reasons he advanced are intelligent and cogent. The SC's judgment in the Seshan case is here.

In this previous post, Arun reflects on the history of Article 324, and suggests that the SC has gone into this in its judgment in the S.S.Dhanoa case. It is worth reproducing from Arun's post (which itself draws from the Dhanoa judgment) what Ambedkar had said on the present Article 324(5):

Commenting upon Clause (4) of the then Article 289 (now Clause (5) of Article 324), Dr. Ambedkar stated as follows:

So far as Clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have, therefore, given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges of the Supreme Court. We, of course do not propose to give the same status to the other members of the Commission. We have left the matter to the President as to the circumstances under which he would deem fit to remove any other member of the Election Commission, subject to one condition that the Chief Election Commissioner must recommend that the removal is just and proper.(Emphasis supplied)

In his previous post, Arun makes the point (with which Dilip concurs) that in the matter of removal of the Election Commissioners, the CEC's recommendation need not be binding on the Government. Arun's another previous post on this issue is also helpful in determining the correctness of CEC's action, and provides necessary links to the contemporary debate in 2007 including this retort from the CEC to an earlier incorrect report in The Hindu.

The initial reaction to the CEC's recommendation focusses mainly on its timing,with several observers making the point that it is this which makes the CEC's action motivated. But these observers probably miss the point that the CEC was perhaps keen to follow the due process, that is, give Chawla a notice, wait for his reply etc. which has taken nearly a year's time. Therefore, the criticism of the CEC's action must be based on other grounds, not necessarily on its timing. It will be, therefore, interesting to know what grounds which the CEC himself cites to justify his suo motu recommendation, if only to know how vulnerable they are.
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