A bout of political gamesmanship in the run-up to elections would normally be seen as par for the course in India's raucous democracy.
But this time the controversy has tainted institutions hitherto deemed sacrosanct. With national polls just 10 or so weeks away, the Election Commission (EC) of India - the constitutional body mandated to conduct the mammoth exercise, spread across 26 states, in a free, fair and visibly non-partisan manner - has erupted in an ugly spat that has politics written all over it.
On the face of it, it's a simple issue. The EC is a three-member panel, on the neutrality and autonomy of which India's democratic process is anchored. In mid-January, the panel's chief, who functions on the principle of being "one among equals", cast doubt on the political impartiality of one of his junior colleagues, who is due to succeed him as chief during this summer's elections.
But why has this internecine war, in what should be a faceless quasi-judicial set-up, become a swirling controversy that has dragged in the high office of the Indian President, divided the entire polity, and even embroiled the legal fraternity? Why is the media so full of it, with arcane though vital questions of constitutional law being debated on front pages, faithfully reflecting the contradictory positions taken by legal eagles?
For one, it's unusual for a vital institution of the state to be in flux precisely at the time it's called into duty: an unprecedented situation, fraught with latent danger. Constitutional bodies are meant to have a sense of solidity, a weight of tradition and protocol that stabilizes the system. Anything that tips it beyond this delicate balance in the present context could potentially derail the upcoming national elections and India could be facing a constitutional logjam.
For another, it offers a fascinating picture of a law in evolution in a real, messy, practical context, being shaped by events and circumstances that it is actually meant to regulate. And lastly, this is also a play of personalities. The Election Commission is hardly the faceless legal bureaucracy you would expect it to be: over the last two decades, it has hosted a bunch of charismatic figures who, defying the collective might of the Indian political class, have played on popular yearnings and caught the public imagination.
The face-off
But first, the essential details of the present face-off. Although it had been simmering for almost three years, the whole thing hit page one with an exclusive by the editor of the southern newspaper, The Hindu. Chief Election Commissioner N Gopalaswami had sent a suo motu - meaning on its own motion - report to President of India Pratibha Patil on January 16. In this 92-page report, shored up by reams of annexures, he had recommended the removal of fellow Election Commissioner Navin Chawla for consistently taking partisan positions favoring the ruling Congress party.
Gopalaswami cited 12 instances to prove his case. From the profane to the serious, these occurred over a period between 2006-09 - that is, since Chawla was appointed Election Commissioner by the Congress-led ruling coalition. The basic charge is that Chawla attempted to influence the timetable of assembly elections in states such as Gujarat, Uttar Pradesh, Himachal Pradesh and Karnataka to suit the Congress's calculations. Three of these elections, however, were won by the Bhartiya Janta Party (BJP). The bombshell of a report goes on to suggest that Chawla regularly leaked classified information to Congress bosses - often while the EC's closed-door internal meetings were in progress. Some of Gopalaswami's citings appear quite comic. For example, he alleges that Chawla used to frequent the washroom during crucial meetings to get feedback from his political bosses on what position to take.
Known for his long association with the Gandhi family - especially Sonia Gandhi, who had been befriended by his wife Rupika Chawla when they were both students of art restoration - Navin Chawla, Gopalaswami alleged, tried to protect Sonia at least twice. Once during what was known as the "office-of-profit" controversy, when members of Parliament holding even titular posts in government-sponsored bodies fell victim en masse to a witchhunt-gone-awry that threatened to consume all parties.
Much to the embarrassment of the ruling party, even Sonia had to resign and get re-elected to avoid disqualification from Parliament. At another time, Chawla prevaricated on a case filed by a lawyer seeking to disqualify the Italian-born Sonia for receiving the Order of Leopold honor from Belgium (thus, allegedly, demonstrating her "allegiance to foreign forces"). On a third occasion, he seems to have supported the move to send Sonia Gandhi a notice for making a "provocative" campaign speech - calling Narendra Modi, the chief minister of Gujarat, a "peddler of death" - but wanted it to remain secret.
Why is this classified dossier being seen as part of a "proxy war"? Because its timing is itself not without political significance. Rather curiously, the report comes just prior to the fixing of the general election schedule. It is also bang in the middle of the election process - that is, on April 20 - that Gopalaswami will turn 65 years of age, the cut-off date of superannuation for a chief election commissioner. And, by way of past precedence, Chawla would take over from him as the Chief Election Commissioner (CEC). It is, of course, a constitutional position highly bound by rule of law and thus insulated from unilateral or arbitrary decision-making. But as the above allegations show, there are things a commission can do that go for or against political interests.
For this reason, in recent years, the EC has become subject to political appointments - career bureaucrats, tacitly loyal to one dispensation or the other, being rewarded with this high-profile posting and in return subtly guarding those interests while overall maintaining the poise and illusion of constitutional propriety. The present case has all the elements that illustrate this. The hostilities actually go back to 2006, right after Chawla came into the EC, when the Opposition BJP/ NDA petitioned then President APJ Abdul Kalam to remove him.
After this petered out, they moved court. In a judgement that left some loose ends, the Supreme Court told the petitioners to approach the CEC. It is this BJP petition, filed with Gopalaswami one year ago, that has now suddenly borne fruit. The key point of legal contention in all this revolved around whether the CEC has suo motu powers to investigate a fellow commissioner and have him removed.
Constitutional subtleties apart, there was some good, old-fashioned muck also flying around. The March 2006 petition was based on media reports - which, miraculously, surfaced around the same time - that a private trust run by Chawla's wife had been receiving discretionary donations from Congress legislators, out of public funds meant for development works. Also, that the trust got land near Jaipur, Rajasthan, at highly subsidized rates during the tenure of a Congress government. (A fresh court case was filed on it this week, signaling further bloodletting.)
That Chawla, a 63-year-old bureaucrat, had a controversial stint in Delhi during the infamous internal "emergency" of 1975, when a state of emergency was declared in India, and was seen to be close to Sanjay Gandhi was also a point of grouse. Many leaders of the opposition BJP spent time behind bars during the emergency.
Having made the decision to name Chawla to the EC, however, Prime Minister Manmohan Singh's cabinet in 2006 decided to tough it out and rejected the petition - though filed with the President, it was the executive's call. The ruling United Progressive Alliance (UPA) bought temporary peace by duly okaying, alongside, the elevation of Gopalaswami to the CEC post. This it did despite the fact that he was appointed to the EC during the previous BJP and National Defense Academy rule. It's less easy to make charges of bias stick on a rulebook-bound officer like Gopalaswami. But prior to his own entry into the Election Commission, the man - who is distinguished among other things by a red vermilion caste-mark on his forehead, a rare display these days of Brahmin conservatism - was the hand-picked home secretary of former deputy PM-cum-Home Minister LK Advani, the 'Iron Man' of the right-wing BJP.
It is for this reason that the Congress has found it possible now to allege "a deep congruence" between Gopalaswami's actions and the BJP's designs. Even respected constitutional experts like Fali S Nariman and former law minister Shanti Bhushan find the timing of the CEC report suspect and political in nature. Bhushan even demanded Gopalaswami's resignation for dragging the commission and the President's office into this controversy on election-eve. The BJP, on its part, is insisting that Chawla's continuation itself is untenable, leave alone his proposed elevation. It is even considering moving the Supreme Court on this.
As the temperatures go up, the political spectrum is also genuinely stricken by the prospect of a constitutional impasse. In the midst of all this, the third man on the commission, SY Quraishi, broke all protocol and jumped the gun to announce a tentative timeframe for the Indian general elections from faraway London. Under the circumstances, it could hardly be written off as a random indiscretion - and created the impression of a triangular split. Remember, this is harvest season at the commission: its daily work would include fixing the timetable for polls that would decide who rules India for the next five years. How would three warring commissioners actually work together? At an all-party meeting called by the EC two days ago, a few delegates openly expressed their doubts.
But will the Congress brazen it out once more, allowing someone clearly perceived as a loyalist to rise to high office? Its response could evolve: though only one commissioner is retiring in April, a senior central minister told this correspondent about "two fresh appointments" being on the cards, which could mean either a scripted resignation drama or even an expansion. For the record, however, law minister HR Bharadwaj did some tough talking through the media, asking Gopalaswami not to exceed his mandate or play "political boss''. Prime Minister Manmohan Singh, who is recuperating from a cardiac surgery, may not want to be seen on the side of constitutional impropriety, but the party seems to be sticking to its guns. That is, the succession can go on as scheduled; and the CEC's recommendation does not bind anyone to any course of action because the incumbent has no suo motu powers.
This moral/legal unease with the phrase suo motu, indeed, has a history that explains exactly why the Election Commission has the prestige and aura that it has in India. It goes back about two decades to the time it used to be a one-man commission. To the seminal but disturbing figure of TN Seshan, the 10th Chief Election Commissioner. A typical mandarin who rose to the very top of Indian officialdom in the 1980s doing nothing more than the servile bidding that his ilk was known for, he suddenly discovered a spine after being named the CEC. The results were nothing short of electrifying.
Those days, elections in India offered a spectacular theatre of democratic malpractice. Alcohol and money would flow in urban shanties in return for votes. And rigging in the vast rural swathes usually went beyond sophisticated sleights of hand accomplished through paperwork. With the tacit knowledge of all party bosses, political goon squads would roam the countryside and simply "capture" entire polling booths or shepherd entire villages by the truckload to vote at gunpoint. Violent clashes and killings were almost normal. Popular disenchantment with "corrupt" politicians was at an all-time high. In short, conditions were ripe for a saviour.
Enter 'Al-Seshan'
In walked Seshan, rulebook in tow, turning a position that was nothing more than a sinecure until then into the Holy Office of the Inquisition. He unilaterally ordered wall-to-wall army deployment in constituencies with a nose for trouble, countermanded elections if there was even a whiff of wrongdoing, and cracked down on parties that ignored the model code of conduct.
In short, he single-handedly took on the entire political class and, to those who questioned, all he did was refer them to the lawbook. He was an excellent scholar, and it turned out that for every sceptic he could quote a constitutional clause that protected his capacity to act. Thus, the Indian citizen began to see in him a personification of the rule of law; he had tapped into a latent desire for order.
Then hubris struck. Seshan's profile inevitably went through a sort of hyper-inflation, hasty biographies were written, and his actions started taking on a distinct dictatorial air, guided by his own vaulting ambition. After his term ended, his visions of presidential grandeur came a cropper in a disastrous bid for the country's highest office, backed, ironically, only by the extreme right-wing Shiv Sena.
But he had accomplished two things: scared witless by his runaway unilateralism, a nervous government in 1993 managed to convert the commission into a three-man panel, with the CEC merely the primus inter pares. Ever since, the precise degree to which the CEC has suzerainty over their two colleagues is a matter of high disputation - coming right down to the present fracas over suo motu powers.
He had also managed to convert the EC into quite the showpiece of Indian democracy, exporting its expertise to such nations as Afghanistan. In testing the boundaries of personal initiative in a judicial role, in exceeding and faltering, he ironically created the space for action that it now inhabits. He set off a bit of a trend, a me-too phenomenon of activist-bureaucrats even outside, behaving like sheriffs riding into a bad town, shooting straight from the lawbook. And in the EC, any number of dowdy bureaucrats who came in his wake have walked with an extra swagger and with the conviction that they sit on a huge deposit of popular trust.
In a political world awash in wavering certitudes, they still play to the perceptions of being objective umpires who refuse to kow-tow to a manipulative, self-serving political class. This aura the institution carries has been burnished anew ever so often, and frequently in very trying circumstances. Its visible neutrality also helps stabilize the polity.
The current controversy broke just days after the commission successfully conducted elections in Kashmir, where a record turnout of voters not only stunned domestic doomsayers and the international community but even shocked Kashmiri separatist leaders. Its regulatory presence and jurisprudence has also helped India manage the transition from being a single-party democracy for much of its 60 years to a multi-party coalition era where small regional parties with limited elected representatives call the shots. It's an increasingly fragmented polity, where two main national parties - the Congress and the BJP - have to depend on regional outfits to form a government or to play an effective opposition, and a non-partisan umpire provides a level playing ground.
It is this role of a neutral adjudicator that the present crop of commissioners must live up to. And the political class too would do well to realize the utility of a robust, autonomous institution goes well beyond the next election. To start with, everyone could mull over the suggestion put forward by TS Krishnamurthy, the former CEC, and the EC's ex-legal counsel KJ Rao, that the appointment of election commissioners be delinked from the executive. For it is clearly the political appointments, done by the government of the day, that has led to such unsavory episodes.
No comments:
Post a Comment