The points that have been made in the criticisms of the Chief Election Commissioner’s recommendation of the removal of Election Commissioner Navin 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 view on at least two grounds. First, the fact that the Constitution does not mandate but only enables the appointment of Election Commissioners, and that we can have, 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 fact that the Constitution has given to the CEC the power of making a recommendation for the removal of an Election Commissioner implies a clear difference between the CEC and the ECs. It is not clear how in the face of that provision anyone can hold that the CEC and the ECs are equals. It could indeed be argued that the CEC and the ECs ought to be given exactly the same kind of protection against arbitrary removal, but that is not what the Constitution says; a constitutional amendment would be needed to bring that about.
The objection to a suo motu recommendation has no force. The Constitution merely says that an EC cannot be removed except on a recommendation by the CEC. It does not say that the CEC can make such a recommendation only on a reference from the government. The Law Minister may consider that desirable, but there is no constitutional basis for such a view.
The argument that it was improper or in bad taste to make such a recommendation against a colleague is strange. It is precisely about a colleague that the CEC is constitutionally empowered to make that recommendation. It is indeed unfortunate that there should be dissension within the Commission. However, it has been there for a long time. The CEC’s action is the outcome of the long-standing dissension and not the cause.
The controversy regarding Chawla is not a new one, nor is it entirely a Congress-BJP question. When Chawla was appointed as EC, many in the country 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 CEC submitted an affidavit that it was within his power to make a recommendation for the removal of an EC. That put the matter out of the Court and on hold, and gradually it faded from public memory. The CEC’s present action is merely the delayed outcome of that old story. It is ironic that in the process the controversy has shifted from Chawla to the CEC.
The question of timing remains. The CEC, having stated in his affidavit before the Supreme Court that he had the power of making a recommendation for the removal of an EC, could have exercised it promptly either positively to make a recommendation for Chawla’s removal or negatively to say that he did not find grounds to do so. Doubtless he needed time to examine the matter, considering the serious nature of the decision, but the fact that the recommendation has been made now, with a Parliamentary election due shortly, has made many commentators criticise it as untimely.
Unfortunate as the timing may be, it does not follow that having examined the matter, the CEC should refrain from acting on his findings. The rightness of that recommendation can be judged only on a careful examination of the grounds on which it is based.
Finally, the established legal opinion seems to be that the recommendation is not binding on the government, and that it is the Appointing Authority, namely the President, that has the power of terminating the appointment. That is debatable, but in any case the CEC’s recommendation should clearly be given very careful consideration, and should not be rejected unless there are strong grounds for doing so. That is why it is disturbing to read reports about ‘sources’ saying that the CEC’s recommendation will be rejected and that Chawla will be the next CEC, implying that the recommendation will be rejected out of hand without due consideration.
How will this affect the conduct of the forthcoming elections? Relationships within the Commission have been difficult for a long time, and they will continue to be difficult. Despite this, the Assembly elections were conducted well, and one hopes that the Parliamentary elections will also be managed efficiently and fairly.
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