CEC's removal issue analysis

(The Hindu Mar 3 2009)
With President Pratibha Patil rejecting, on the advice of the United Progressive Alliance government, Chief Election Commissioner N. Gopalaswami’s recommendation to remove Election Commissioner Navin Chawla from office, an unedifying chapter in the working of the Constitution should soon come to an end. The CEC’s move was wholly indefensible in terms of both its constitutional overreach and its timing. It invoked non-existent authority and threatened to destabi lise the functioning of the Commission during the very critical phase of the 15th general election that is to be conducted in five phases from April 16 to May 13. The government’s advice to the President is unexceptionable, even as it was expected, given its public stand that the CEC’s recommendation was totally out of line. The President’s announcement makes it clear that the decision was reached after considering “the report of the CEC, the Government’s recommendation, constitutional provisions, and the Supreme Court judgment.”



It is unfortunate that the CEC should have got himself and his office embroiled in what started out as a political battle. It was in March 2006 that Bharatiya Janata Party leader L.K. Advani submitted a petition to the President charging Mr. Chawla with being too close to the Congress party and seeking his removal. Traditionally, it has been the government in office that appointed to the Election Commission persons whom it considered suitable. There is much to be said for broadening the process of appointment to the Commission by associating the leader of the Opposition as in the case of the appointment of the Chief Vigilance Commissioner, for instance. Yet the BJP-led National Democratic Alliance administration had shied away from such self-denying reforms during its six years in office. It had instead followed the usual practice and appointed the members of the Election Commission on its own, including the present CEC initially as an Election Commissioner. By now seeing virtue in denying the government of the day the unrestrained power to appoint Election Commissioners and questioning the UPA government’s choice on the ground of bias, the BJP was clearly playing partisan politics. The main opposition party also approached the Supreme Court and it was there that the present CEC interposed himself between the political combatants with his claim of suo motu power. Following this claim, the party withdrew its petition and presented it later to the CEC for action. The Supreme Court itself, while allowing the petition to be withdrawn, left open the contested question whether the CEC did have the suo motu power to recommend the removal of an Election Commissioner.


It is clear from the constitutional scheme of things that the CEC cannot initiate action and recommend the removal of any of his colleagues, but instead must wait for a reference from the President for his recommendation. Article 324 (5) of the Constitution provides that the CEC cannot be removed except by impeachment as in the case of a Supreme Court judge, and that an Election Commissioner “cannot be removed from office except on the recommendation of the Chief Election Commissioner.” With the security of his or her tenure guaranteed, the CEC is expected to protect the Election Commissioners from arbitrary removal by the executive. The Supreme Court in its detailed analysis of the Article in T.N. Seshan’s case cautioned that if “the power 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 differences of opinion on the timing of the Karnataka elections, for instance, were to be treated as proof of bias and as a ground for recommending removal, Election Commissioners would be deterred from voicing their independent opinion and forced to go by the dictates of the CEC. The whole scheme and the deliberative and collective decision-making value of a multi-member Election Commission, with the Election Commissioners enjoying equal powers with the Chief Election Commissioner, would then come to nought. From a practical standpoint, if the CEC were to claim such a power, his or her office would be inviting representations from parties dissatisfied with some order or the other of an Election Commissioner. Former Attorney-General Ashok H. Desai, in his opinion tendered to the Election Commission on Mr. Advani’s petition, was clearly of the view that “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.” This was also the position that Mr. Gopalaswami’s predecessor as CEC, B.B. Tandon, took in the Supreme Court.


It is clear, in any case, that the President alone can remove an Election Commissioner, and the President and the government are not obliged to accept a recommendation for removal from the CEC even if that were to be within his competence. Now that the decision to reject the CEC’s recommendation on Mr. Chawla has been made, it is imperative that the government must announce the appointment of Mr. Chawla as the next CEC-designate without delay. The murky controversy raised by the BJP and by the CEC’s recommendation is absolutely no reason to depart from longstanding practice. The government would also do well simultaneously to name the person who will replace Mr. Gopalaswami as the third member of the Election Commission when he retires on April 20; this would obviate an appointment when the election process is under way. Without the distraction of an internal war that will do no good to its functioning, and with uncertainty over its composition removed, the Election Commission will be well placed to conduct the elections.