Bharatiya Janata Party is concerned about the statement of the government ofIndia through the union law minister to the effect that the Constitution ofIndia would be amended in order to ostensibly create parity between the threemembers of the Election Commission and make the petition seeking the removal ofShri Navin Chawla as Election Commissioner infructuous.
The Bharatiya Janata Party had sought the removal of Shri Navin Chawla from theElection Commission in accordance with the provisions of Article 324(5) of theConstitution. The removal has been sought [through a petition signed by 180members of Parliament] on the ground of the partisan conduct of Shri Chawlabefore his acquiring the membership of the Election Commission and also duringhis functioning as a member of the Election Commission.
It is the close proximity of Shri Chawla to the Congress Party and itspolitical functionaries that creates an apprehension in the minds of the rightthinking people that he cannot function independently and in a detached manneras a member of the Election Commission. The petition extensively mentions therole of Shri Navin Chawla during the Emergency, the observations made by theJustice Shah Commission, his acquisitions of prime postings, grant of MPLADfunds to private trusts controlled by Shri Navin Chawla by Congress MPs and thepartisan role of Shri Chawla as a Member of the Election Commission.
The Election Commission should be politically detached and equi-distant. If thepractice of appointing partisan persons as member of Election Commission getsestablished as a precedent, it will provide a temptation for future governmentsto pack the Election Commission with its own sympathizers. The threat is moreacute because it is not an independent collegium that nominates the members ofthe Election Commission but the political government of the day which does so.
The union law minister’s statement has confirmed our worst fears. Here is agovernment in power which, to save Shri Navin Chawla, is willing to go to theextent of amending the Constitution. This statement is conclusive of how muchvalue the Congress Party attaches to the continuation of Shri Navin Chawla as amember of the Election Commission. When this statement is read in the context ofthe action of Prime Minister’s office in not even forwarding the petitionseeking Shri Chawla’s removal to the Chief Election Commissioner for hisrecommendations, the vested interest of the Congress Party in the continuationof Shri Navin Chawla as a member of the Election Commission gets confirmed.
The Constitution deliberately provided for a Chief Election Commissioner tomake recommendations whether to continue or not a member of the ElectionCommission. What goes on within the four-walls of the Election Commission isknown only to the Chief Election Commissioner and not to the politicalgovernment. If there is an allegation of bias against a member of the ElectionCommission of favouring the government in power, it is only appropriate that itis the Chief Election Commissioner who adjudicates the allegation of bias andnot the political establishment which is the beneficiary of that bias.
As of today, the constitutional position regarding the status of the CEC vis avis the Election Commissioners is governed by the decision of the Supreme Courtof India in the case titled T.N. Seshan vs. Union of India, reported at (1995) 4SCC 611, which reads,
"…….. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they could not be conferred the same type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or Executive pressure, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC...."
The central government seems to have conveniently forgotten that it is anamendment to the Constitution that it is perceiving. The Congress Party does notcommand a two-third majority in either Houses of the Parliament to amend theConstitution. Even with its allies, it is unlikely to reach that figure.
Shri Navin Chawla’s episode will once again put the Left parties on trial.They will have to make a judgment whether to blindly support theconstitutionally inappropriate action of the Congress Party or lean in favour ofstrengthening independent constitutional institutions.
Arun Jaitley is General Secretary, Bharatiya Janata Party.
