CEC V/s EC

The points that have been made in the criticisms of the ChiefElection Commissioner’s recommendation of the removal of Election CommissionerNavin Chawla include the following:

• the Election Commission is a body of equals, and the CEC is only one among equals;

• it is unfortunate that the CEC should have made such a recommendation about one of his own colleagues;

• he was wrong to make it suo motu, without a reference from the Government;

• this raises doubts about his motivation and about his political leanings;

• and the timing of the recommendation, with an election in the offing, is inappropriate.

These are examined below.

That the CEC is only one among equals is a questionable viewon at least two grounds. First, the fact that the Constitution does not mandatebut only enables the appointment of Election Commissioners, and that we canhave, and did have for many years, an Election Commission with only the CEC,clearly places the CEC on a different footing from the ECs.

Second, the factthat the Constitution has given to the CEC the power of making a recommendationfor the removal of an Election Commissioner implies a clear difference betweenthe CEC and the ECs. It is not clear how in the face of that provision anyonecan hold that the CEC and the ECs are equals. It could indeed be argued that theCEC and the ECs ought to be given exactly the same kind of protectionagainst arbitrary removal, but that is not what the Constitution says; aconstitutional amendment would be needed to bring that about.

The objection to a suo motu recommendation has noforce. The Constitution merely says that an EC cannot be removed except on arecommendation by the CEC. It does not say that the CEC can make such arecommendation only on a reference from the government. The Law Minister mayconsider that desirable, but there is no constitutional basis for such a view.

The argument that it was improper or in bad taste to makesuch a recommendation against a colleague is strange. It is precisely about acolleague that the CEC is constitutionally empowered to make thatrecommendation. It is indeed unfortunate that there should be dissension withinthe Commission. However, it has been there for a long time. The CEC’s actionis the outcome of the long-standing dissension and not the cause.

The controversy regarding Chawla is not a new one, nor is itentirely a Congress-BJP question. When Chawla was appointed as EC, many in thecountry were dismayed. Some even wrote to the President of India on the subject.The BJP petitioned the Supreme Court, but withdrew its petition when the CECsubmitted an affidavit that it was within his power to make a recommendation forthe removal of an EC. That put the matter out of the Court and on hold, andgradually it faded from public memory. The CEC’s present action is merely thedelayed outcome of that old story. It is ironic that in the process thecontroversy has shifted from Chawla to the CEC.

The question of timing remains. The CEC, having stated in hisaffidavit before the Supreme Court that he had the power of making arecommendation for the removal of an EC, could have exercised it promptly eitherpositively to make a recommendation for Chawla’s removal or negatively to saythat he did not find grounds to do so. Doubtless he needed time to examine thematter, considering the serious nature of the decision, but the fact that therecommendation has been made now, with a Parliamentary election due shortly, hasmade many commentators criticise it as untimely.

Unfortunate as the timing may be, it does not follow thathaving examined the matter, the CEC should refrain from acting on his findings.The rightness of that recommendation can be judged only on a careful examinationof the grounds on which it is based.

Finally, the established legal opinion seems to be that therecommendation is not binding on the government, and that it is the AppointingAuthority, namely the President, that has the power of terminating theappointment. That is debatable, but in any case the CEC’s recommendationshould clearly be given very careful consideration, and should not be rejectedunless there are strong grounds for doing so. That is why it is disturbing toread reports about ‘sources’ saying that the CEC’s recommendation will berejected and that Chawla will be the next CEC, implying that the recommendationwill be rejected out of hand without due consideration.

How will this affect the conduct of the forthcomingelections? Relationships within the Commission have been difficult for a longtime, and they will continue to be difficult. Despite this, the Assemblyelections were conducted well, and one hopes that the Parliamentary electionswill also be managed efficiently and fairly.