Can CEC unilaterally ask for EC to be removed?

2 Feb 2009,


Bitterness — personal, political or social — has seldom avoided a journey to the courts. And, bitterness in the inner corridors of Election Commission is not new. In the past, imprudent or ill-timed government interventions or the egos of chief election commissioners and election commissioners had injected bitterness into the commission, constitutionally mandated to keep the health of democracy in shape by conducting free and fair elections.

The Supreme Court was seldom amiss in expressing its deep anguish over the ego clash and the government's poor handling of sensitivities attached to the commission. It had also never let go an opportunity to delineate the role, function and importance of the CEC and the ECs.

After 39 years of existence as a single-member body headed by CEC, the government on October 15, 1989, decided that it was time to make the commission a 3-member body and appointed S S Dhanoa and V S Seigell as ECs under chairmanship of CEC R V S Peri Shastri.

Even before the new ECs had settled down, the Centre abolished the posts of ECs on January 1, 1990. Dhanoa had cried foul and rushed to the apex court, which on July 24, 1991, gave its verdict upholding abolition of the posts saying it was within the President's discretion.

Two years after Dhanoa judgment, the Centre re-employed the old idea and appointed M S Gill and G V G Krishnamurthy as ECs to tame the no-nonsense CEC T N Seshan. It was the turn of Seshan to move the apex court terming the move a blatant attempt to dilute the mandate of Article 324 of Constitution. In 1995, the SC upheld the appointment of ECs, favoured a multi-member body and warned against concentration of wide undefined powers under Article 324 in a single person — the CEC.

In both Dhanoa and Seshan judgments, the SC, no doubt, treated the CEC and ECs as co-equals in terms of their working. It also had no hesitation in upholding CEC's superior role, mainly because he, and he alone under the Constitution, could recommend removal of ECs, a condition precedent for the President to act.

The present controversy, born out of CEC N Gopalaswami's recommendation to the President to remove EC Naveen Chawla, probably traverses a different path unchartered by earlier controversies. Does the CEC have unilateral powers to recommend removal of an EC or should he have to await a ‘reference' from the President? If CEC and ECs are co-equals, then how could the CEC be superior to rush such a missive? Is it binding on the President?

The timing of Gopalaswami's recommendation, despite his impeccable integrity, is extraordinarily inept, as eminent jurist Fali S Nariman put it on Saturday.

But, as asked by former attorney general Soli J Sorabjee, did the CEC exceed his constitutional brief in making a suo motu recommendation for removal of an EC?

May be not, for the Constitution does not restrain the CEC to await a presidential reference on a complaint alleging misconduct on the part of an EC to first inquire and then give a recommendation. If experts cite Seshan judgment, then they may be right on the print of the judgment. But, one should not forget that it was an anguished interpretation by the SC given the unsavoury facts and circumstances prevailing at a tense EC under a legally belligerent Seshan.

If complaints to the President, its reference to CEC, the inquiry by him and then the recommendation was the only available procedure for removal of an EC, then a CEC would be rendered a toothless chairperson of an important constitutional body even if he, to cite an example, saw grave misconduct on the part of an EC in the secret chambers of the commission where most important decisions about the health of a democracy is taken.

As such behaviour gets fertilised in the absence of public glare, no one would be competent to complain about it to the President. No reference on it could ever be sent to the CEC. And, the chairperson of the important body would helplessly watch an EC steadily injecting poison into the blood streams of a democracy. For, he could make no unilateral recommendation to the President under Article 324(5) second proviso!

The SC, sooner than later, would be called upon to decide this issue. Till then, we will watch political wrangling dirtying the already troubled waters