J. Venkatesan

Timing of Gopalaswami’s action unfortunate, says Sorabjee

New Delhi: Eminent jurist and constitution expert Fali Nariman has regretted the Chief Election Commissioner (CEC) N. Gopalaswami’s action recommending the removal of Election Commissioner Navin Chawla.

The CEC may have the power under Article 324 (5) of the Constitution to recommend the removal of an EC but this power cannot be used mechanically due to some difference of opinion with the other Commissioners simply because he is a superior authority.

It can be used only if there is a gross violation or if a person has become bankrupt. Even if there is power, why should the CEC use it for a flimsy reason, Mr. Nariman asked.

Asked whether the CEC’s recommendation is binding on the government, he says: “It is not binding. At the same time, the government can’t reject the report. It has to get the views of Mr. Chawla before taking a decision. I am more upset at the timing. When we need a united Commission for holding the general elections, it [CEC’s action] has divided the Commission and has done damage to the institution.”

Asked whether the CEC can exercise the power under Article 324 (5) only on a reference from the appointing authority or whether he can act on any complaint received, Mr. Nariman says it is a grey area that has not been answered by the Supreme Court in a petition filed by the BJP.

According to the former Attorney-General and senior advocate, Soli Sorabjee: “The power of the CEC to recommend removal of an EC is implied given the structure of the Election Commission. But the timing is unfortunate. It is for the government to take a decision to accept or not accept the recommendation. If there are cogent reasons for the government to reject the recommendation, it can do so.”

Senior advocate and constitutional lawyer P.P. Rao is of the view that the CEC cannot make any recommendation for removal of an EC without holding a full-fledged enquiry. “Merely because the CEC has the discretion to exercise the power, he can’t use that power without following the due procedure contemplated under the administrative law.” Why should the institution be exposed, he asked and said, “The recommendation is subject to judicial scrutiny.”

According to senior advocate C.S. Vaidyanathan: “The CEC can act only on a reference made by the appointing authority, viz the President, on the advice of the government. It can’t be in respect of an EC’s conduct in the Commission or if he differs with the views of the CEC. It will be a dangerous situation if the CEC exercises his powers as a superior authority as it will put the constitutional body in peril.”

Timing correct: Salve

Another constitution expert, Harish Salve, however, says: “The CEC has given his view consistent with the directions of the Supreme Court after the matter was disposed of and there could be no limitations in such matters. The CEC has the power to recommend removal of Mr. Chawla — power means suo motu power can also be exercised. When somebody objects to a partisan appointment by the government, to say that the CEC can’t act is not correct. The CEC has to act on it. We can’t have a situation in which there is a vacuum. The CEC has done the right thing and the timing is also correct because we are few months away from the general elections and the government has to take a decision.”

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