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.
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.