Given its position that Chief Election Commissioner N. Gopalaswami lacks the authority to recommend removal of his colleague Navin Chawla without a Presidential reference, and the Law Minister’s bald assertion that Mr. Chawla will most likely be elevated as CEC in view of his current seniority, it is not surprising that the UPA has decided not to act upon Mr. Gopalaswami’s January 16 letters to President Pratibha Patil.

One letter detailed the reasons for urging Mr. Chawla’s removal as Election Commissioner; press reports suggest Mr. Gopalaswami listed instances of pro-Congress bias. These include differences over the conduct of the Gujarat, Himachal Pradesh, and Karnataka elections, and the Election Commission’s decision to send a notice to Congress president Sonia Gandhi on the acceptance of an honour from the Belgian Government. Reportedly the Commission’s internal deliberations were being leaked to the government, which resulted in phone calls to the CEC and even the visit of the Prime Minister’s Principal Secretary.

Given the seriousness of the charges, many jurists and analysts feel the full text of Mr. Gopalaswami’s letter should be made public. This would be apt, as the conduct of officials in constitutional posts, especially amidst allegations of bias, is a matter of public concern. Public anxieties are only aggravated when Union Ministers like Mr. Hansraj Bharadwaj aggressively attack the CEC and insist that controversial officials like Mr. Chawla will be promoted on Mr. Gopalaswami’s retirement on April 20.

Mr. Gopalaswami’s second missive to the President addresses public concerns over the election panel’s neutrality and independence. In the recent past, one CEC wanted to become President of the Republic; another CEC is content to serve the ruling coalition as a Minister of State, thus gravely diminishing the office. Mr. Gopalaswami’s suggestion that rules be amended to ensure that no retired CEC or EC can join any political party for 10 years after demitting office, is flawless. It is appropriate as the era of single-party government is over; hence, a politically unaligned Election Commission is imperative.

The conduct of the Union Law Ministry leaves much to be desired. The very appointment of Mr. Chawla as Election Commissioner was improper in view of his proximity to late Sanjay Gandhi and UPA chairperson Sonia Gandhi, which earned him considerable ignominy from the Shah Commission. It enraged a major political party like the BJP, which unravelled evidence of favours to private trusts run by Mr. Chawla and his wife from the Congress government in Rajasthan, as well as Congress MPs.

Simultaneously, within the Commission, Mr. Chawla was unable to conduct his office with rectitude, and tension was simmering when in mid-2007, Mr. Gopalaswami filed an affidavit in the Supreme Court claiming power to recommend removal of a colleague without a Presidential reference, which led BJP to withdraw its petition before the apex court. It is pertinent that the Law Minister, who is now hyperventilating about his powers over the Election Commission, did not implead his Ministry as a party in this controversy to settle the issue of the CEC’s authority in this respect.

Pro-government commentators have questioned the timing of Mr. Gopalaswami’s bombshell, just prior to the general elections and his own retirement from office. The CEC has since explained the delays in acting upon the BJP’s petition of 30 January 2008; what concerns us, therefore, is the issue of his powers under Article 324 (5) to make a suo motu recommendation.

Mr. Hansraj Bharadwaj has argued that the three Election Commissioners are equal, and that the CEC is merely an administrative head. Yet the Constitution made a clear distinction between the CEC and the ECs; the CEC can be removed only by impeachment process similar to that of judges of the Supreme and High Courts, so that the office is insulated from political interference.

But Election Commissioners and Regional Commissioners in states can only be removed on recommendation of the CEC, which clearly establishes that they are not equals. As the Constitution nowhere suggests the CEC can make recommendations only on a reference from the government, the objection to a suo moto recommendation by Mr. Gopalaswami is null and void. Dr. B.R. Ambedkar said that regarding removal of other Ecs, “the President can only act on the recommendation of the Chief Election Commissioner” and that was “a very important limitation” on the President’s power (Constituent Assembly, June 16, 1949).

The crux of the matter, therefore, is whether the CEC’s recommendation is binding or can be rejected by the government of the day. The Supreme Court in the case of T.N. Seshan inter alia observed that the Constitution had limited the power of Parliament in order to protect the independence of the CEC from political and/ or executive interference. The Ecs and RCs cannot be removed from office except on the recommendation of CEC, to ensure their independence.

Whichever way one looks at this, the power to remove the CEC or any EC or RC is denied to the Executive of the day in order to safeguard the independence of these functionaries and of the Election Commission as a body. It stands to reason therefore, that the government cannot decide the fate of an EC in opposition to the recommendations of the CEC, as that would negate the constitutional provisions that an EC “shall not be removed from office except on the recommendation of the CEC.”
 
Thus, we may aver that the letter and spirit of Article 324 (5) suggests the CEC’s recommendation is binding upon the government unless there are very cogent and convincing reasons for rejecting it. These decisions should be transparent, and it would be in the fitness of things for the government to first make known the reasons cited by the CEC for removal of Mr. Chawla. The dignity and credibility of a Constitutional body and a Constitutional office is at stake.

Meanwhile, shattered public confidence would be restored if the government refrains from appointing Mr. Chawla as CEC, as he is widely perceived as being palpably biased in favour of the Congress party. The credibility of the general elections would also be maintained if the entire process is completed within the tenure of the entire extant Commission, without stretching the process unduly, as suggested by CPM leader Sitaram Yechury at the Commission’s all-party meeting.

The author is Editor, www.vijayvaani.com