N. Ram

Suo motu act is constitutionally and democratically out of line, will damage institution

 In a move guaranteed to stir up institutional and political controversy, Chief Election Commissioner N. Gopalaswami has suo motu sent a recommendation to the President that Election Commissioner Navin Chawla should be removed from office on the alleged ground of ‘partisanship.’ The President has forwarded the CEC’s missive to the Prime Minister.

Mr. Gopalaswami’s action has raised eyebrows within the government on account of its timing as well as its departure from well-settled readings of the relevant constitutional provisions. The 15th general election, along with Assembly elections in some States, will be held in April-May 2009. Mr. Gopalaswami himself will retire as CEC on April 20 and Mr. Chawla will succeed him.

The sequence of events is as follows. On March 16, 2006, BJP Leader of the Opposition L.K. Advani and 204 MPs submitted a petition to President A.P.J. Abdul Kalam seeking the removal of Mr. Chawla as Election Commissioner under Article 324(5) of the Constitution. A month later, BJP leader V.K. Malhotra sent a copy of this petition to the CEC. With the President forwarding the petition to the Prime Minister, the matter rested there with the political government evidently finding no merit in the BJP’s allegations.

The BJP took the matter to the Supreme Court where its arguments seemed to make no headway. It withdrew the petition in August 2007. In January 2008, the BJP leaders took the matter up with the CEC who curiously received them in his chambers instead of scheduling a formal meeting of the three-member Election Commission to hear them out. Subsequently, Mr. Gopalaswami served a notice on Mr. Chawla and took a whole year to come up with his adverse recommendation. He is known to have rejected as irrelevant the BJP’s allegations going back to the Emergency and so forth. He claimed that he based himself on his own experience and observations of Mr. Chawla’s work as Election Commissioner.

In his affidavit submitted to the Supreme Court, Mr. Gopalaswami departed from precedent to claim that the CEC had suo motu power to recommend the removal of an Election Commissioner. He interpreted his predecessor B.B. Tandon’s view as being the same as his. Actually, Mr. Tandon’s view was shaped by an opinion given by Ashok Desai, former Attorney General, in April 2006. That opinion clearly held that under Article 324(5), which was elaborately interpreted by the Supreme Court in its judgment in T.N. Seshan, Chief Election Commissioner of India v. Union of India (1995), “the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an EC.”

The Supreme Court in the Seshan case held that the Article 324(5) proviso for the removal from office of the CEC only through impeachment (as in the case of Supreme Court judges) as well as the proviso that the Election Commissioners shall not be removed except on the recommendation of the CEC (“based on intelligible, and cogent considerations”) was designed to protect the independence of the Election Commission as a body from political or executive arbitrariness. The Court specifically held that “if…the power [of recommending removal of an Election Commissioner] were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs…if they are required to function under the threat of the CEC recommending their removal.”

The well-accepted legal position is that the three-member Election Commission is a constitutional body of co-equals, with equal voting power, and the CEC is the first among equals with certain leadership and administrative responsibilities. Crucially, Election Commissioners, being appointed by the President, that is, the political government, without consultation with the CEC, can be removed only by the President, that is, the political government. (The CEC as well as ECs apply to the President for leave and forward their tour programmes to her.) A necessary constraint on the executive’s power is that ECs cannot be removed without the recommendation of the CEC – after a formal reference is made by the executive.

Mr. Gopalaswami is an able man with a great deal of administrative experience. He is well regarded in the services. But his suo motu act of adventurism, coming towards the end of his tenure as CEC, is constitutionally and democratically out of line. The Manmohan Singh government will no doubt give the CEC’s unasked opinion the quietus it deserves. But its effect will be to stir up political controversy over an institution that has done its job of conducting free, fair, and peaceful elections creditably during Mr. Gopalaswami’s tenure. The impact on the internal workings of the Election Commission of India can well be imagined.

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