February 26, 2020
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For The Record

'Undermine, Tarnish And Destroy'

The Congress spokesman raises ten questions, blames the "BJP, for its perceived narrow political ends" and points out "how constitutionally erroneous the conduct of the current CEC has been through out this unfortunate episode"

'Undermine, Tarnish And Destroy'

Unedited text from the Congress media cell

Without going in to the merits of the petition submitted by the BJP to the Chief Election Commissioner, without even commenting on the merits of the suo moto recommendations made by the CEC to the President of India, (as the CEC has referred to it as a privileged document) and without even imputing any motives to the Chief Election Commissioner, allow me to point out as to how constitutionally erroneous the conduct of the current CEC has been through out this unfortunate episode and as to how the BJP for its perceived narrow political ends has sought to undermine, tarnish and destroy the credibility of the Election Commission of India. 

The following questions and answers would help crystallize the position and substantiate the averments made above.

Why did the BJP petition the President of India on 14th February, 2006 to remove Sh. Navin Chawla and not the CEC in the first instance?

Because the BJP was perhaps correctly advised, which is also the settled legal position that only an appointing authority can be the removing authority also. Appointing Authority of the CEC and ECs is the President of India acting upon the aid and advise of the Council of Ministers.

Why did the BJP go to the Hon'ble Supreme Court of India?

After President Kalam correctly forwarded the NDA petition ot the government on 30th March, 2006 . the BJP thought it would try its luck in the Supreme Court.

Why did the BJP withdraw its petition from the Hon'ble Supreme Court?

When the current CEC put a spin on the correct stand taken by his predecessor, Sh. B.B. Tondon that he could only make a recommendation if the petition is referred to him by the President by incorrectly stating that in his understanding that the powers vested in CEC under second proviso to Article 324 (5) of the Constitution can be exercised on information which has come to his knowledge during the course of his functioning as the chief election commissioner or on the basis of any formal representation or petition filed before him by a political party or by any other person or body".

Was it appropriate for the CEC to give an in-chambers hearing to the BJP delegation on 29th January, 2008?

No. As per the Supreme Court in the T.N. Seshan, Chief Election Commissioner of India Vs. Union of India (1995) 4 SCC 611- It has held that "The CEC does not enjoy a status superior to ECs. Though it is only in the case of the CEC that the first proviso to clause (5) of Article 324 lays down that conditions of service cannot be varied to the disadvantage of the CEC after his appointment, whereas such a protection is not extended to the ECs, but by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary, etc. The absence of such provision for ECs does not make the CEC superior to ECs."

What is the purpose of the protections to the CEC & EC enshrined in Article 324(5) fo the Constitution of India?

Protect from Political and Executive Bosses of the day. As per the Supreme Court in the T.N. Seshan, Chief Election Commissioner of India Vs. Union of India (1995) 4 SCC 624

"In the case of ECs as well as RCs, the second proviso to clause (5) provides that they shall not be removed from office except on the recommendation of the CEC. It may also be noticed that while under clause (4), before the appointment of the RCs, consultation with the Election Commission (not CEC) is necessary, there is no such requirement in the case of appointments of ECs. The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC." 

Of course, the recommendation for removal must be based on intelligible and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realize that this check on the executive's power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body. "If, therefore, the power were to be exercisable by the ECE as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal."

Is the word 'recommendation' in 2nd Proviso to clause (5) Artticle 324 binding on government?

No. There is nothing in the T.N. Seshan or the S.S. Dhanoa case (1991) 3 SCC 512 which lends itself to this interpretation. The analogy being drawn to the interpretation of the word 'consultation ' in the S.C. Advocates on Record Assn. Vs. Union of India (1993) 4 SCC 441 is erroneous.

Was the timing of this recommendation inappropriate?

Yes. With two months for the General Elections and 78 days to retire.

It would be worth recalling the observations of the Supreme Court Order in the T.N. Seshan, Chief Election Commissioner of India Vs. Union of India case . quote "In the first place, the submission proceeds on the basis that the other two ECs will join hands to render the CEC non-functional, a premise which is not warranted. It betrays the CEC's lack of confidence in himself to carry his colleagues with him. In every multi-member commission it is the quality of leadership of the person heading the body that matters."

Does difference of opinion on issues necessarily mean bias?

No. The whole philosophy of independence in Administration rest upon the doctrine of candour. The doctrine mandates that every government functionary has the right to express his opinions frankly and fearlessly. This ensures that consideration of issues is not reduced to a command performance on instructions from above.

Is there a Congruence of Actions between the BJP and CEC?

The circumstances and the manner in which the whole episode has unfolded clearly suggest so.

Is the BJP an Institution Destroyer?

Yes! On 7th October, 1989 the then Congress Government converted Election Commission into a multi member body by appointing two more Election Commissioners. On January 1st, 1990, the National Front government which if you may recall was supported by the BJP rescinded those notifications. It is a Congress government that restored the Commission to a multi member body on 01-10-1993.

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