Spat within EC: Was it really bias?

By Jayanti Natarajan

The Election Commission has been, until very recently, one of the heroes of Indian democracy. From the mountains of Himachal to the Kashmir Valley, from the Northeast to the Andamans, our elections have been somewhat of a miracle in modern democratic history. They have been by and large free and fair. Although in the subcontinent, democracy has often been challenged, India has always prided itself on its robust democratic traditions. This is why the present controversy, which has arisen over the letter sent by Chief Election Commissioner (CEC) N. Gopalaswami to the President of India, is particularly unfortunate.

By throwing the EC into a bitter and unpleasant debate, the CEC has virtually delivered a body blow to the credibility and authority of the EC. That he should have chosen to do this barely two months before his own retirement, and just before general elections, has complicated the issue, which may well have adverse constitutional implications. Regardless of what apologists for the CEC may say, his action, its legal implications and his timing, are indefensible.

Article 324 lies at the crux of the matter and the issue is whether the CEC has the constitutional power to recommend suo motu the removal of an election commissioner or a regional commissioner. And if the CEC does make such a recommendation, will it be binding upon the President? Two major cases where the Supreme Court has had occasion to deal with similar, although not identical issues, were in S.S. Dhanoa’s case and in T.N. Seshan’s case.

The constitutional position is clear. The CEC cannot be removed from office except by impeachment, but the election commissioners do not enjoy identical protection. However, it has been settled by the Supreme Court that in order to insulate the EC from political interference, any decision to remove them can only be done after the recommendation of the CEC. To quote Kapil Sibal, this provision is, therefore, meant to be a shield to protect the election commissioners and by no means a sword in the hands of the CEC to be used at whim to “oppress” his fellow election commissioners. (The word oppression in this context was used by the Supreme Court in Mr Seshan’s case while referring to the possibility of misuse of his recommendatory powers by a CEC.)

Only the appointing authority, namely the President, acting upon the advice of the Cabinet, has the power to remove an election commissioner after obtaining the recommendation of the CEC. It would be perverse to argue that the President will appoint an election commissioner but the CEC will have suo moto power to remove him.
The BJP is well known as an “institution destroyer”. Few would have forgotten the personal and malignant attack the BJP launched upon CEC Lyngdoh, even bringing communal colour to the attack. Whereas the Indian National Congress has always shown admirable restraint, and observed great reticence when articulating views about constitutional functionaries. This was in keeping with the policy of our leadership that institutions should be preserved at all costs.

In this particular case, the CEC has not just charged his colleague but has also claimed that he showed a distinct bias to the Congress. It would be important to point out at this time that the letter of charges against Navin Chawla, sent to the President by the CEC — although meant to be a classified document, but BJP leaders are quoting from — is mainly a litany of instances of Mr Chawla’s alleged partisanship in favour of the Congress and not any offence of moral turpitude or palpable unconstitutional action. The CEC’s charges are all his own presumptions of a perceived bias he thinks Mr Chawla has in favour of the Congress, which an unbiased bystander may well interpret to be an honest difference of opinion.
On the other hand, some others may justifiably question the actions of the CEC himself, as being in favour of the BJP, whose leader he served under as home secretary. It was, indeed, the NDA led by the BJP which also appointed Mr Gopalaswami as the CEC. There are many questions raised over how the CEC called for Assembly elections in Himachal Pradesh four months before the tenure of the previous Assembly ended without so much as informing, leave alone consulting, the governor or the government.

Was it to favour the BJP? Eyebrows were raised over his haste and insistence on calling elections in Karnataka, before electoral rolls were finalised and before the delimitation exercise was carried out, as a result of which President’s Rule had to be extended. Was this too to favour the BJP? What about the infamous venomous communal CDs which were distributed during the UP Assembly elections in 2007 by the BJP? An FIR was filed against Rajnath Singh, the state president, and office bearers of the BJP, and the EC took suo moto cognizance of the distribution of objectionable CDs.

Charge sheets were filed, but the CEC closed the case thereafter. Was it bias in favour of the BJP? If so, the question which must be answered is how bias in the case of Mr Chawla becomes objective and unbiased if done by the CEC? The BJP should realise that the reticence of the Congress is due to its desire to preserve institutions and not that the questions surrounding certain acts of the CEC have gone unnoticed.

Above all, the CEC owes the country an explanation as to why he has destroyed the credibility of the EC from within. His statement that he was waiting in order to avoid the charge of bias before the Karnataka elections reinforces doubts regarding his bias in favour of the BJP, apart from being utterly unconvincing in legal and constitutional dimensions. The debate is now public, and very bitter. Once again it will be the inherent strength of our democracy and the maturity of our electorate that will find a way out of this morass.