Thursday, February 5, 2009

What is happening in the Election Commission of India?


Mr Gopalaswamy[centre] and MrChawla[right]

Election Commission of India is in the news daily for all the wrong reasons.
The Chief Election Commissioner[CEC] Mr Gopalaswamy has recommended to the President to remove Mr Navin Chawla from the post of Election Commissioner.
There are mainly 2 opposing viewpoints expressed [ by the 2 main political parties of India] for the reason for the fiasco.Let me examine it in detail and come to a conclusion.
The information I have is mainly from 2 newspapers, New Indian Express and The Hindu.Interestingly these 2 newspapers are divided in their opinion.The New Indian Express which is a pro-hindutva newspaper supports the BJP's point of view while 'The Hindu' which can be called an anti-BJP newspaper [or some may like to call it pro-Left/Congress] supports the Congress viewpoint.

An overview about Election Commission

Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950.


The Constitution of India has vested in the Election Commission of India the superintendence, direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
Originally the commission had only a Chief Election Commissioner.
Later, on 1st October 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote.


The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

The Commission transacts its business by holding regular meetings and also by circulation of papers. All Election Commissioners have equal say in the decision making of the Commission.


The Controversy

Mr.Navin Chawla, the election commissioner[EC] appointed by the UPA is alleged to be close to the Congress. The Shah Commission report on the excesses conducted by the Indira Gandhi Government during the Emergency had made some adverse remarks against Mr Chawla[He was then a Secretary under Delhi Government].Mr Chawla was appointed as EC in May 2005.

Without any obvious evidence of bias in the functioning of Mr Chawla the BJP started opposing his appointment.

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[EC] under Article 324(5) of the Constitution.
The article says
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office [by the President] except on the recommendation of the Chief Election Commissioner.

From this action of the BJP it is clear that they knew that as per the Constitution the Government/President should refer to the CEC any complaint regarding an EC if the Government found some merit in the complaint.BJP tried a chance with the then President A.P.J.Kalam.The President referred it to the Cabinet.

A month later, BJP leader V.K. Malhotra sent a copy of this petition to the CEC,Mr Gopalaswamy who is considered close to Mr Advani.

With the President forwarding the petition to the Prime Minister, the matter rested there with the 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.

BJP withdrew the petition in August 2007.

In January 2008, the BJP leaders took the matter up with the CEC .

In July 2008 CEC asked for an explanation from Mr Chawla for the BJP's allegations.

On September 12, 2008 Mr Chawla sent his detailed and constitutionally substantive reply. In this, he questioned the locus standi of the CEC in this matter.EC quoted legal opinion saying CEC cannot arbitrarily proceed against EC.

Several correspondence followed.CEC insisited he has the legal power to act against EC while Mr Chawla and most lawyers thought otherwise.They were quoting the elaborate interpretation 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.”

Now the CEC Mr Gopalaswamy has recommended the removal of Mr Chawla from the post of EC based on BJP's complaint and also his own enquiries alleging partisanship.

The irony of the fact is that Mr Gopalaswamy is about to retire on April 20 and Mr Chawla is all set to be the CEC before next General election to be held in May.



My Take on the Subject



Was Mr Chawla really partisan?

The full details of the CEC recommendations are not available.But watching the Election Commission function in the last 4 years with no serious allegations of partisanship raised by the Opposition Party, what I feel is that allegations against Mr Chawla is only a fear he might he partisan and not actual misconduct.The current CEC who is considered close to Mr Advani also did not face any allegations of partisanship.Moreover the rules and regulations of the functioning of Election Commission is such that it will be difficult to get away with partisanship.

The Government has made it clear that Mr Chawla will remain as Election Commissioner. BJP's options are limited other than throwing more mud at Mr Chawla,with whom they will have to do business for at least 2 years.Let us hope BJP will put aside their fear of partisanship and act maturely.


I agree with The Hindu that this move by CEC [at the behest of BJP] on the eve of his retirement and just before the Parliament election has provoked needless hostility and brought a political twist and divisions into the Election Commission.

At the same time it would have been better for the Congress to choose a person of high repute,with a history of clean public service and great calibre to this position of huge importance to Indian Democracy.
Let us hope that when the next vacancy in the Election Commission is filled all Political Parties are taken in to confidence and a person of stature will be appointed.
Damaging our Constitutional Institutions for narrow political gains will gravely harm our democracy.

15 comments:

  1. I wanted to understand this properly. Am going to come back and read this.

    Thanks for this analysis.

    ReplyDelete
  2. What can one expect from our sham democracy!

    ReplyDelete
  3. Solilo, I wont say it is a sham democracy. India is still one of the very few countries in the third world that had almost regular and fairly free and fair elections since its Independence

    ReplyDelete
  4. @Charakan,

    Wonderful. Finally, A Blog which gives me an insight into facts and not just opinion.
    I will keep coming to your blog.

    Sham democracy, ya, i don't think so. But its just not working right. People were NOT SUPPOSED to vote on the BASIS ON CASTE/RELIGION/AREA/COMMUNITY/LANGUAGE.
    We were supposed to vote for the BEST MAN/WOMAN.

    And then, a Mangalore shouldn't have happened. Mangalore does make it sound like a SHAM Democracy.

    ReplyDelete
  5. Thanks Chikki.You are welcome. Let us call it an imperfect democracy.

    ReplyDelete
  6. Brilliant post Doctor..Infact,i ahdn't understood this issue to its complete,until i read your post..And you have done great job of quoting constitution article reference .

    It is sad that people throw mud at each other for narrow minded reasons.They never think of what effects these things have on common people's mindset..For instance,in my case,i was thinking 'Oh,so memebers in EC have their own personal interests,so it is less chance that elections are impartial',whereas,it is not the case,bcoz you told that neither Gopalaswamy not Chawla have been accused of being partisan.

    There has to be a code of conduct,on how people can accuse in proper channel,rather than putting it is public ,in the first instance,thereby defaming people and derailing the normal mindset of the public mass...

    Good job and i must thank you for the post..Keep writing

    ReplyDelete
  7. Nimmy, thank you for the nice words. The BJP''s accusation was Chawla is close to Congress and he CAN be partisan. They are saying, as he will become the CEC from April he can undermine the neutrality of election commission.
    What is there in CEC's recommendation letter we are not sure. I think an EC should be judged by his actions as EC and not by his past actions as a Govt bureaucrat. The next election commissioner to be appointed on Gopalaswamy's retirement should be a person of high standing and calibre. This will help to increase the confidence in the functioning of election commission

    ReplyDelete
  8. Ours is also a very young Democracy. And we have centuries of history of never having been really united as one nation...

    ReplyDelete
  9. Navin Chawla has a history of acting in a partisan way to help the Congress during the Emergency period. He has been found unfit to hold any constitutional post by the Shah commission. And yet the UPA appoints him to one of the most important constitutional post in our country.
    Who is being partisan Congress or the BJP?



    You have said
    "But watching the Election Commission function in the last 4 years with no serious allegations of partisanship raised by the Opposition Party, what I feel is that allegations against Mr Chawla is only a fear he might he partisan and not actual misconduct"

    The CEC has laid charges against him . Why isnt the government the letter public?
    And assuming he has not acted in a partisan way would you first wait for him to act in a partisan way( something which he has done in the past) and then take action?

    ReplyDelete
  10. R, Thank you for the comment.
    Shah commission had passed such adverse remarks on a number of officials including Mr. Chawla who had toed the Sanjay Gandhi line during the excesses of Emergency in 1975-76.
    Since then Mr. Chawla had a long and distinguished carrier in higher echelons of bureaucracy. Now he had also completed 4 years as Election Commissioner with out showing any real evidence of partisanship. The exact details of CEC's allegations we do not know. But CEC took action on complaint letter of BJP. In that letter there is no specific allegation against Chawla about his work in election commission. From the various Press reports about the CEC's allegations what I can infer is Mr. Chawla might have disagreed with CEC about some election dates which I do not consider a serious allegation of partisanship.
    Was Congress correct in appointing Mr. Chawla at first place as EC? No. Congress should have opted for someone who is more acceptable to the opposition Parties.
    Now as you asked 'should we wait for Mr. Chawla to show his partisanship?'
    In reply to that I will ask another question. Should we remove an EC who had completed 4 out of his 6 year term as EC without any real evidence of partisanship to please the BJP? Such an action will be unprecedented and harm the Election Commission very much.
    What is the way ahead? When the next EC is appointed the ruling Party should ensure that the a person of high caliber and reputation acceptable to all is chosen. As the decisions in Election Commission are taken by majority vote such a person will ensure neutrality of the Commission.

    ReplyDelete
  11. Navin Chawla did not merely toe the line. He acted with extra powers . I do not know why you have said he had a long and distinguished carrier in higher echelons of bureaucracy . Do you have any reference for that? Given that Congress was ruling party most of the time till 96 it is not surprising that he had a career in the 'higher echleons of bureaucracy '.

    The UPA refuses to make public what the charges are and now has confirmed him as the CEC.
    Indian Express has published some of the accusations. Check them out.

    http://www.indianexpress.com/news/revealed-cecs-letter-accusing-chawla-of-congress-bias/430601/

    You have said
    'From the various Press reports about the CEC's allegations what I can infer is Mr. Chawla might have disagreed with CEC about some election dates which I do not consider a serious allegation of partisanship.'

    It is partisanship if the dates are changed to suit a particular party.


    'Should we remove an EC who had completed 4 out of his 6 year term as EC without any real evidence of partisanship to please the BJP? Such an action will be unprecedented and harm the Election Commission very much.'

    Some accusations are in the link above.It is not about pleasing the BJP. The question is of the integrity on EC. Would you rather subvert the democratic process than harm the EC? The damage to EC in any case has already being done.

    ReplyDelete
  12. Mr Chawla was Secretary to Govt of India in various departments includiing I and B,Forest and Consumer Affairs,under both UPA AND NDA ministries.He was also the Secretary of UPSC during NDA Ministry.He had also written biography of Mother Teresa which was widely translated.
    All the charges of Mr Gopala Swami are just his claims that Chawla tried to do that and this etc...Also some claims are just Gopala Swami's beliefs that Chawla had leaked information to Congress. Congress has more grave complaints about Mr Gopala Swamy which sounds more credible. http://www.indianexpress.com/news/cong-hits-back-says-cec-went-easy-on-bjp/422260/
    Mr Chawla, I feel is as close to Congress as Mr Gopalaswami is close to BJP. Congress did not try to dismiss Mr Gopala Swami for his 'bias' towards BJP,even though they could have done so. Mr Gopala Swami's bias is evident from his actions against Mr Chawla,while I am still to see any proof of bias against Chawla in his actions as Election Commissioner.
    The best for election Commission is to have non-controversial officials unlike Mr Gopala Swami and Mr Chawla.But it is unhealthy and a bad precedence to remove an election commissioner under not so credible allegations by a CEC who is also alleged to be biased.

    ReplyDelete
  13. "Mr Chawla was Secretary to Govt of India in various departments includiing I and B,Forest and Consumer Affairs,under both UPA AND NDA ministries.He was also the Secretary of UPSC during NDA Ministry.He had also written biography of Mother Teresa which was widely translated."

    It is a disgrace that Chawla continued to function as a public officer inspite of Shah commission's findings.Indian bureaucracy is hardly meritocratic. All IAS officers have long careers and work under whichever party is ruling. Why is it a distinguished career?
    Even if it is distinguished, it does not mean he is not partisan.
    Regarding the biography, that is a non issue in this case.

    "All the charges of Mr Gopala Swami are just his claims that Chawla tried to do that and this etc...Also some claims are just Gopala Swami's beliefs that Chawla had leaked information to Congress."

    They are not just claims. They are his
    actions.From the Indian Express link, his actions were biased in the POSTPONEMENT OF BEAS (PUNJAB) POLLING, REGISTRATION OF INDIRA CONGRESS (KARUNAKARAN),UP ASSEMBLY ELECTION: DEORIA LATHICHARGE CASE (2007) cases. If his actions were different let him clarify them. In some cases he acted against advice of EC legal advisors like KARNATAKA POLLS (2008) and CONTROVERSIAL BJP CD CASE IN UP POLLS (2007).

    "Congress has more grave complaints about Mr Gopala Swamy which sounds more credible. http://www.indianexpress.com/news/cong-hits-back-says-cec-went-easy-on-bjp/422260/"

    There are two cases mentioned in this report.
    1) CD issue.
    FIR was filed against BJP. Check out the link.
    http://www.tribuneindia.com/2007/20070409/nation.htm#6
    There is a also a similar allegation against Laloo Prasad Yadav. No action was taken in that case.
    2) Saree distribution case.
    Chargesheet was filed against Tandon.
    http://www.indianexpress.com/oldstory.php?storyid=66251

    So where is the 'bias' for BJP in these cases? Why are these 'complaints' graver?


    "Mr Chawla, I feel is as close to Congress as Mr Gopalaswami is close to BJP"

    Do you have references to prove Gopalawami is close to BJP? Gopalaswami has a reputation for being apolitical.
    See this link. It also highlights differences between the two.
    http://in.rediff.com/news/2009/feb/04-navin-chawla-an-authority-by-himself.htm

    Chawla on the other hand is close to the Gandhi family. His trust has received funds from Congress MPs.
    http://www.tribuneindia.com/2006/20060317/nation.htm#1

    "Congress did not try to dismiss Mr Gopala Swami for his 'bias' towards BJP,even though they could have done so. Mr Gopala Swami's bias is evident from his actions against Mr Chawla,"

    If they had any evidence about bias, Congress should have dismissed Gopolaswami. They did not because there was no bias towards BJP.
    What bias has Gopalaswami shown against Chawla? He has detailed the incidents when Chawla has acted against the norm. In some occasions he believes Chawla leaked information Congress. That can only be proved from phone records, but given Chawla's proximity to Congress that is hardly a fanciful allegation.

    "while I am still to see any proof of bias against Chawla in his actions as Election Commissioner."
    I do not know what you would consider as evidence. The UPA has not made the letter public and refused to investigate the matter. But even after the some of the circumstancial evidence being provided , you consider Chawla a paragon of impartiality you are just being in denial.


    "The best for election Commission is to have non-controversial officials unlike Mr Gopala Swami and Mr Chawla.But it is unhealthy and a bad precedence to remove an election commissioner under not so credible allegations by a CEC who is also alleged to be biased"

    What are the charges against Gopalaswami?
    The EC must have exemplary officers and that is why Chawla should not have been the CEC.But you can hardly expect that from Congress who has a history of subverting democratic process and institutions.

    ReplyDelete
  14. CEC it now seems was hand in glove with BJP from 2006 onwards in trying to remove Chawla.Thats why I feel he is biased against Chawla.I wont be surprised if he joins some Sangh Parivar Organisation after retirement.
    It is CEC's opinion versus Chawla's denial.No credible evidence that Chawla's action showed bias towards Congress.
    Let me make it clear for the last time.I know Chawla was close to the Congress.The whole accusation drama was started by the BJP because of the fear of bias.No proof just the fear. I prefer men/women who is not only unbiased but also earns the respect of Oppositon as ECs.I hope Congress will rise to the occassion when the next EC is chosen.
    Read the articles and analysis in Hindu.I have the same opinion.I know you and Sangh Parivar have another opinion.History may prove who is right.Let us agree to disagree.Thank you for the discussion

    ReplyDelete
  15. "CEC it now seems was hand in glove with BJP from 2006 onwards in trying to remove Chawla.I wont be surprised if he joins some Sangh Parivar Organisation after retirement."

    CEC acted on the petition of the NDA. Does that make him hand in glove with the BJP?

    "Thats why I feel he is biased against Chawla."
    You may feel whatever you want. But is it grounded in reality ?

    "I wont be surprised if he joins some Sangh Parivar Organisation after retirement"
    So you think Gopalaswami is biased in favour of BJP because he might join some Sangh Parivar Organisation in future but Chawla is not biased inspite of his closeness to Congress in past ? Thats strange reasoning. Are you really serious?
    I doubt he would join any Parivar outfit. He has also forwarded two other proposals to the President, including one that recommends that CEC and ECs be debarred from taking up gubernatorial assignments, membership of legislatures or even joining a political party for up to 10 years after demitting office.
    http://economictimes.indiatimes.com/News/PoliticsNation/CEC_Gopalaswami_had_cogent_grounds_for_recommendation/articleshow/4078252.cms

    We cannot predict anything in future. Is there any incident till now that shows Gopalaswami is close to BJP?


    "It is CEC's opinion versus Chawla's denial.No credible evidence that Chawla's action showed bias towards Congress."

    Have you read all the allegations? In the cases Gopalaswami said he leaked information, it is one's word against another. We can have phone records but Congress wont allow it. But in the cases mentioned in last comment there are instances where he has acted against the norm and everytime Congress is the beneficiary. You continue to believe there is no proof and in this case your stance is a bit similar to that Pakistan government's stance in 26/11 case. No amount of proof will satisfy you. Hardcore evidence will be available when the government investigates and Congress is not allowing it.

    "Let me make it clear for the last time.I know Chawla was close to the Congress.The whole accusation drama was started by the BJP because of the fear of bias.No proof just the fear"
    It is not just fear. Some of the instances have been given in CEC letter expose. And Caesar's wife must be above suspicion.



    "Read the articles and analysis in Hindu.I have the same opinion.I know you and Sangh Parivar have another opinion.History may prove who is right.Let us agree to disagree.Thank you for the discussion"

    I fail to understand why you are lumping me with Sangh Parivar. We disagree and the unfortunate part is your are not being objective in this case.

    ReplyDelete

Comments are welcome especially if you do not think like me. But anonymous comments behind masks and those not relevant to the post are not encouraged.