N. Ram

The factual record shows that on July 21, 2008 — six months after he received a petition from a BJP delegation in his chambers — Chief Election Commissioner N. Gopalaswami forwarded the allegations to Election Commissioner Navin Chawla in an officious letter. He asked him to offer his comments on “the issues raised in the said petition at your earlier convenience to enable me to consider the matter for further appropriate action.” Ten days later, Mr. Chawla courteously acknowledged the CEC’s July 21, 2008 missive, saying that he would revert to him.

The CEC did not have to wait for long because on September 12, 2008 the EC sent his detailed and constitutionally substantive reply. In this, he questioned the locus standi of the CEC in this matter and called attention to “the variance in the extant constitutional position qua Article 324(5) and your interpretation of the same.” He said that by way of abundant caution he had written to the Union Law Secretary, T.K. Viswanathan, to seek information on whether the President or the government had been apprised of the representation in the first place and also to ascertain the stand of the Central government. Pointing out that he had set out his response to the allegations in a detailed June 2006 affidavit in the Supreme Court, the Election Commissioner backed up his stand by enclosing along with his affidavit the affidavits of former CEC B.B. Tandon and the Election Commission’s Secretary, K.F. Wilfred, and also Ashok Desai’s legal opinion. Mr. Chawla added that his response was without prejudice and should not be considered to be his reply on “the merits” of the petition signed by Mr. Advani and others.

In a letter dated September 17, the CEC peremptorily rejected the constitutional contentions in Mr. Chawla’s elaborate reply and demanded a response on “the merits of the petition” as early as possible.

Even Law Secretary T.K. Viswanathan’s letter of clarification, dated November 7, 2008, which Mr. Chawla forwarded to Mr. Gopalaswami was given short shrift. In his letter to Mr. Chawla, the Law Secretary confirmed that a copy of the petition signed by Mr. Advani and other MPs had not been forwarded either by the petitioners or by the CEC to the President or the Ministry of Law and Justice. Neither had the Central government been consulted by the CEC before seeking Mr. Chawla’s reply to the allegations. Most importantly, the letter put on record the government’s considered view that “the removal of an Election Commissioner under the second proviso to Article 324(5) of the Constitution cannot be initiated by the Chief Election Commissioner except upon a reference or with the concurrence of the Central Government.”

Treating all this as irrelevant, the CEC sent two more reminders to Mr. Chawla asking for a reply on “the merits of the petition” and even prescribing deadlines. Finally, on December 10, Mr. Chawla gave his reply, questioning the CEC’s locus standi in detail and rejecting the allegations as baseless, devoid of evidence or “any material to even warrant a suggestion of impropriety on my part as an Election Commissioner,” and made for “extraneous considerations.”

The wonder is that as this unseemly drama was progressing and the internal blood-letting getting worse, the three-member Election Commission managed to conduct Assembly elections in six States. For five States, election announcements were made on October 14 and the poll completed on December 5. For Jammu & Kashmir, the announcement was made on October 19 and the poll completed on December 28.

Soon after this, Mr. Gopalaswami, who will retire on April 20, fired what he thought was his Brahmastra. It seems to have backfired.

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