Monday, February 02, 2009

EC's removal: Search for clarity

The controversy over the CEC's recommendation to remove the Election Commissioner, Navin Chawla is raging, even though the documents, crucial to determine the correctness of the recommendation, are still out of the public domain. The purpose of my second post on this issue is to examine some of the unsubstantiated contents of the CEC's report, as carried in the media.

One such story on CNN-IBN says that Chawla leaked the EC's proceedings to the Congress Party, well before a decision was taken, and that he had always expressed views favourable to the Congress. Now, this could well be a serious case of indiscretion against Chawla, if the EC is a body, far removed from the public. It appears as though the CEC is obsessed with secrecy of EC's proceedings, and always wants to project the EC's unity, even if there is a genuine disagreement among the three members. If the EC follows a practice of issuing a press release after every decision, as to which Commissioner took what stand at the meeting, and what was the final outcome, it would be possible to appreciate the Commission's functioning in a transparent manner. But the EC's obsession with secrecy for its own sake has not made this possible, and the result is if there is a leak from the Members (is there any code that the Commissioners shall not leak what they discussed?), it leads to allegations of partisanship.

In my view, such allegations would lose their relevance, if the decisions are taken in a transparent manner. After all, the commissioners want to be treated as Supreme Court Judges. Therefore, why can't they give reasoned decisions after every meeting, even if there is a dissent? If there is an element of partisanship by one Commissioner, it gets neutralised by the opposition to it by the remaining members. If all the three Commissioners are partisan, there is public opinion to take care of that, even if there are no immediate judicial remedies. Therefore, partisanship of a Commissioner, ipso facto cannot be the basis for recommending the removal of a Commissioner.

The CEC, according to reports, rightly rejected most of the allegations in the BJP's petition, submitted to him in January 2008. Although a copy of this petition is not available, we have the BJP's petition submitted to the President on March 16, 2006, which gives an idea of the allegations against Chawla. Towards the end, the petition deals with Chawla's functioning in the EC, without going into details and adds that the CEC would be aware of the details as he would have observed it first-hand. This petition was forwarded by the then President to the Government which did not make a due reference to the CEC on its basis.

The BJP challenged the non-reference in the Supreme Court. The BJP leader, Jaswant Singh who challenged it, argued that the Government was bound to make a reference on the basis of the complaint. During the hearing of this case, Jaswant Singh's counsel, Soli Sorabjee observed that the Government was under an obligation to make a reference after receiving the petition from the President. (Interestingly, Sorabjee is now critical of the timing of the CEC's recommendation and also holds the view that it is not binding on the Government).

On August 7, 2007, the Supreme Court allowed Jaswant Singh to withdraw his petition following the CEC's affidavit that he can suo motu recommend removal. Importantly, Supreme Court observed that the CEC can recommend (EC's removal), but if the Government is unhappy with the recommendation, it can come to the Court for relief. Parts of the Hindu report on the proceedings is worth reproducing:

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 mistake then you can come to the court. We would then decide the matter.”

The Bench while recording the submissions of the Additional Solicitor-General said: “We are allowing withdrawal of the petitions while keeping open all questions [raised in the petitions]. They can make representation to the CEC, who will decide such representation in accordance with law. We are not expressing any opinion on merits.”

Two things follow from this: A. The CEC can (can "will" be construed as "shall?) decide the representation received against the Commissioner from a third party B.If the CEC commits mistake, then the Government can come to the Court for relief.

Today, the Law Minister has rejected the CEC's recommendation, and announced that Chawla will take over as the CEC, after Gopalaswamy completes his term as the CEC.

The two commissioners may carry on as if nothing has happened in order to complete the preparations for the ensuing Lok Sabha elections (as is suggested here). Most observers, however, appear to have missed the concept of checks and balances implicit in Article 324(5). I outline this as follows:

A. The Government can make a reference to the CEC for the removal of the EC. This reference is not binding on the CEC, because it is for the CEC to examine the reference on its merits, and decide whether he should concur with it and make a recommendation to the effect. He can decline to make a recommendation, despite having received a reference, if it appeared to him that the reference was mala fide.

B. The CEC can make a recommendation without a reference from the Government. But it is for the Government to examine the recommendation on its merits, and if it disagrees, can refuse to accept the recommendation on the ground that it is mala fide.

Update: The August 7, 2007 order is available on the SC's site. Strangely, it includes a sentence which might well be a mistake that had crept in while the Bench was dictating the order: That Chief Election Commissioner has no power of suo motu recommendation whether binding on the President or not is already negatived by binding judgments. I call it a mistake because it is precisely on this issue, the Court said it was expressing no opinion.
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