Sunday, March 01, 2009

Controversial recommendation

Acknowledgement: Most of the ideas in this editorial were constructed from the links and debates at this excellent blog maintained among others, by V.Venkatesan, the Frontline legal correspondent.

A controversy rages in the Election Commission triggering debate among constitutional experts.

The Election Commission of India (ECI), the one institution that in recent years has more or less managed to maintain its integrity in overseeing an important aspect of the functioning of Indian democracy, finds itself greatly weakened on the eve of the elections to the 15th Lok Sabha.

The suo motu recommendation by Chief Election Commissioner (CEC) N.Gopalaswami to the president to remove fellow Election Commissioner Navin Chawla from his position has raised a political storm, not to mention created a legal controversy about the Constitutional propriety of such an action.

An interesting aspect of the controversy is is that whether or not there is substance to the allegations that Chawla has acted in a prejudiced and partial manner as a member of the ECI has not been subject to close scrutiny. These allegations and many more had already been levelled against Chawla by the opposition Bharatiya Janata Party (BJP) and others in the National Democratic Alliance. They followed up a petition to the former president seeking Chawla's removal with a plea filed in the Supreme Court by BJP leader Jaswant Singh pleading for action against Chawla. The BJP later withdrew the petition following an affidavit filed by the CEC affirming that he had the powers to recommend the removal of an election commissioner.

There is no express provision in the Constitution that states that a recommendation by the CEC should be preceded by a referral from an appropriate executive authority. Some commentators, however, assert that Article 324 (5) of the Constitution which says, “any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner”, implies that the CEC does indeed have the authority to initiate action against an EC.. This logic has been cited by the CEC and others to affirm that he can issue
suo motu recommendations to have a fellow member of the ECI removed from his post. In the Chawla case, the argument that there must be a referral from the political executive prior to any recommendation by the CEC is complicated by the fact that Navin Chawla is accused of bias toward the ruling party.

Yet, the procedural aspects governing the recommendations by the CEC have to pass the test of the course of natural justice. Even if the CEC is empowered to make recommendations (as mentioned in the Constitution), it is surely the case that such a recommendation would have to emanate from investigation of misconduct by someone else apart other than the CEC as the CEC cannot take up both the processes of investigation and recommendation for action by himself.As some insightful commentators have noted, a suo motu recommendation based on the findings of the CEC is indeed problematic since the requirement of a recommendation by the CEC for the removal of an election commissioner from her position is only a Constitutional limit on the powers of the executive vis-a-vis the ECI. It does not automatically translate into a shift of power from the executive to the CEC on the removal of an election commissioner. Thus procedurally speaking, the CEC's decision to issue a suo motu recommendation creates a new precedent that could be misused by future CECs.

The right course of action would have been for the CEC to provide all the material collected on Navin Chawla and hand it over to the president who would provide the same to the council of ministers, who would then constitute an enquiry with the election commissioner given an opportunity to respond.. The adjudicating authority would then be given to the CEC to act upon. While these are issues of precedence that all the institutions of democracy should have grappled with, there is also the case that when it came to it, some of these institutions have been found wanting. As argued elsewhere in these columns, the Supreme Court, in particular, was presented an opportunity to clarify matters. But the Court, which has otherwise shown an unhealthy enthusiasm to interfere in political matters, chose in this very important Constitutional issue to pass the buck.

There is no question that Navin Chawla is unfit to occupy the position he now does, let alone be line to become the CEC. His record as secretary to Delhi's lieutenant governor during the Emergency was appalling, with the JC Shah commission investigating the excesses during the period, holding him responsible and going on to make specific remarks against him ("unfit to hold any public office which demands an attitude of fair play and consideration for others").. Subsequent evidence that a trust run by him and his spouse was a beneficiary of the Member of Parliament Local Area Development Scheme funds administered by Congress party members of Parliament (before his taking over the post of Election Commissioner) or that he asked for (and received) land for the trust at concessional rates show that the Chawla’s subsequent actions were in conformity with the negative observations of the Shah commission more than three decades ago.

Considering that the ECI is mandated to perform duties of "superintendence, direction and control" of elections it is apparent that call for an extraordinarily high degree of integrity and neutrality, Navin Chawla's record as a public servant and the multitude of allegations against him make his continuation in office a travesty of governance and Constitutional propriety. Can the United Progressive Alliance government, whose reputation is more in tatters than properly clothed, redeem itself at the end of its term with at least the one action of not appointing Navin Chawla to the post of the CEC? The UPA government may find it politically impossible to accept Gopalaswami’s recommendations but it can demonstrate to the electorate that in the end it does care for the integrity of the ECI, even if it has done so much to tear it to shreds.

Draft of the editorial to be published in the forthcoming issues of the Economic & Political Weekly

No comments: