N. Ram

Documentary record shows he hounded Navin Chawla and made light of constitutional considerations

Chief Election Commissioner N. Gopalaswami has been widely criticised, among others by top constitutional lawyers Fali Nariman, Shanti Bhushan, and K.K. Venugopal, for the timing of his missive to the President just three months ahead of the 15th general election and three months ahead of his own retirement as CEC. In response, Mr. Gopalaswami has gone on record essentially blaming Election Commissioner Navin Chawla for the timing, claiming that he sent his ‘final reply’ to the allegations made in the BJP’s petition only on December 10.

A careful, item-by-item verification by The Hindu of the CEC’s claims on what happened within the Election Commission between January 30, 2008 and January 12, 2009 reveals that they are seriously misleading.

On January 30, 2008, Mr. Gopalaswami received in his chambers a Bharatiya Janata Party delegation led by Arun Jaitley. It submitted a petition making various allegations against Navin Chawla and demanding his removal as Election Commissioner. On January 12, 2009, the CEC sent his report to the President ‘recommending’ that Mr. Chawla be removed from office under Article 324(5) of the Constitution.

First of all, more than half the delay is explained by Mr. Gopalaswami’s keeping the BJP’s petition to himself between January 30 and July 20, 2008. He is now quoted in the press as attributing the delay on his part to a highly subjective factor, the differences he had developed with Mr. Chawla over the timing of the Karnataka election. (“I put the petition on hold till the Karnataka election was over, lest it be misunderstood.”)

Secondly, the timing is to be explained by the CEC’s overbearing insistence, in tandem with the BJP’s strident stance, that he had the power under Article 324 (5) of the Constitution to conduct an inquiry against an Election Commissioner, and make a suo motu recommendation on his removal. This usurpation of authority flew in the face of the Supreme Court’s judgment in T.N. Seshan, Chief Election Commissioner v. Union of India (1995). It was a complete reversal of the stand taken in June 2006 by Mr. Gopalaswami’s predecessor, B. B. Tandon, and by the Election Commission itself in the Supreme Court. It also went against the legal opinion given to the Election Commission, on April 16, 2006, by Ashok H. Desai, senior advocate and former Attorney-General for India. What constitutional or legal sanction other than the BJP’s averments Mr. Gopalaswami had for his dogmatic claim of suo motu authority over a fellow member of the Election Commission remains to be inquired into and explained.

The documentary record shows that he relentlessly hounded an Election Commissioner, who was supposed to be his equal, after demanding his “comments on the issues raised” in the BJP’s petition so that he could “consider the matter for further appropriate action.” He peremptorily ruled out challenges to his locus standi and jurisdiction. He insisted, in his written communication with Mr. Chawla, that the matter was solely “between the Chief Election Commissioner and the Election Commissioner” and had “nothing to do with the Central Government,” the appointing authority for the CEC as well as ECs.

The CEC rejected the constitutional contentions in Mr. Chawla’s elaborate reply of September 12 and demanded a response on “the merits of the petition” as early as possible. Even Law Secretary T.K. Viswanathan’s vitally important letter of clarification, dated November 7, 2008, which Mr. Chawla forwarded to Mr. Gopalaswami, was dismissed as irrelevant in the cat and mouse game the CEC seemed to be playing.

Mr. Chawla’s ‘final reply’ of December 10 was only a reiteration of the important constitutional points he made in his reply of September 12 plus a rejection of the BJP’s allegations as “motivated and entirely baseless.”

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