Tuesday, February 03, 2009

The EC imbroglio: Two commentaries

Ramaswamy R. Iyer has a clear and compellingly written op-ed in today’s Indian Express where he seeks to take on some of the views that have been articulated about this continuing controversy. Iyer first argues that the current view about the EC being the first among equals – as set out in the governing Supreme Court ruling in the Seshan case – is indefensible from a textualist perspective:

That the CEC is only one among equals is a questionable view on at least two grounds. First, the fact that the Constitution does not mandate but only enables the appointment of election commissioners, and that we can have, and did have for many years, an election commission with only the CEC, clearly places the CEC on a different footing from the ECs. Secondly, the fact that the Constitution has given to the CEC the power of making a recommendation for the removal of an election commissioner implies a clear difference between the CEC and the ECs. It is not clear how in the face of that provision anyone can hold that the CEC and the ECs are equals. It could indeed be argued that the CEC and the ECs ought to be given exactly the same kind of protection against arbitrary removal, but that is not what the Constitution says; a constitutional amendment would be needed to bring that about.

Iyer then goes onto comment on other views expressed on the controversy:

The objection to a suo motu recommendation has no force. The Constitution merely says that an EC cannot be removed except on a recommendation by the CEC. It does not say that the CEC can make such a recommendation only on a reference from the government. That may be desirable, but there is no constitutional basis for such a view.

The argument that it was improper or in bad taste to make such a recommendation against a colleague is strange. It is precisely about a colleague that the CEC is constitutionally empowered to make that recommendation. It is indeed unfortunate that there should be dissension within the commission. However, it has been there for a long time. The CEC’s action is the outcome of the long-standing dissension and not the cause.

The controversy regarding Chawla is not a new one, nor is it entirely a Congress-BJP question. When Chawla was appointed EC, many in the country were dismayed. Some even wrote to the president of India on the subject. The BJP petitioned the Supreme Court, but withdrew its petition when the CEC submitted an affidavit that it was within his power to make a recommendation for the removal of an EC. That put the matter out of the court and on hold, and gradually it faded from public memory. The CEC’s present action is merely the delayed outcome of that old story.”

…Unfortunate as the timing may be, it does not follow that having examined the matter, the CEC should refrain from acting on his findings. The rightness of that recommendation can be judged only when we know the grounds on which it is based.

Iyer’s analysis fits well with the view expressed by another former civil servant when this controversy surfaced earlier. Writing in the Indian Express in September 2007, R.C. Iyer, a former Chief Electoral Officer of Maharashtra, set the controversy in historical context by describing the evolution of a multi-member commission since 1989. Some of those facts need to be borne in mind while assessing the current controversy. R.C. Iyer’s op-ed also draws attention to previous such controversies, under previously constituted versions of the Election Commission.

The Law Minister’s reported reactions to the controversy do not inspire confidence that the issues involved will be dealt with in a strictly constitutional, non-partisan manner. Sadly, this is not a new phenomenon, as is alluded to by both commentators above. Every government – regardless of which political party is in power - finds it tempting to massage appointments to crucial institutions like the Election Commission to its own political advantage. (In the United States, this typically happens with appointments to the federal judiciary, and there is already speculation about the kind of appointments that the Obama administration will make to reverse the effects of the Bush appointees, and consolidate the Obama administration's policies).

Controversies like this emphasise the importance of taking such political realities into account while structuring institutional processes for the appointment and removal of crucial constitutional functionaries. An injection of pragmatic considerations might well be needed in our current times, where relying solely on the integrity and neurtrality of decision-makers seems naive.The Election Commission has functioned for two decades as a multi-member Commission – perhaps it is time to consider whether the parent constitutional provision needs to be changed to reflect this reality, and respond to the problems that accompany such awareness.

In contemporary India, the Election Commission is clearly one of the most significant public institutions. If so much attention has been focused in the past few decades on the idea that our judicial institutions should enjoy real independence from the other wings of government, surely the EC - which plays a significant role in shaping the contours of our democracy - merits at least some attention in this behalf?

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