Even as it begins the process of conducting the 15th Lok Sabha elections barely two months away,the Election Commission of India is at the centre of an unprecedented controversy after Chief Election Commissioner (CEC) N Gopalaswami sent a recommendation to the President for the removal of his colleague Election Commissioner Navin Chawla alleging that he was partisan (in favour of the ruling Congress).
The CECs move has pitted the Congress against the BJP,raised questions of Constitutional propriety and cast a cloud on the functioning of a panel that,of late,has built a formidable reputation of independence and credibility.
The President has left it for the Government to take a call on the recommendation. External Affairs Minister Pranab Mukherjee said the governments response would be made available in due course but sources told The Sunday Express that the Government is likely to reject it arguing that EC members being co-equal, they can be removed only through impeachment.
Official sources said that under Article 324 and Transaction of Business Rules,all appointments by the President and their removal have to be done on the aid and the advice of the Cabinet. Thats why the routing of the CECs recommendation was wrong its for the Prime Minister to send such proposals to the President,not to receive them.
These sources said the governments stand would be that since the Supreme Court has held that the CEC could be removed through impeachment and that the three-member Commission is a constitutional body of co-equals, the Election Commissioners would also have to be removed through impeachment as is the case with both the Chief Justice and the judges.
Gopalaswami demits office on April 20 and Chawla is senior to the third EC S Y Quraishi. Chawla ruled out his resignation and speaking to The Sunday Express,said: The EC has delivered flawless elections for several years. We will continue to do it. The dignity of the EC is paramount.
The BJP was,however,quick to stress that the as per the Constitution,the Central government has no discretion in this matter and is,therefore,bound by this recommendation. Political detachment has never been a virtue of Navin Chawla. He has bias in favour of ruling party and thus the Government. The beneficiary of the bias cannot adjudicate the existence of the bias. This has to be adjudicated by an independent Constitutional authority. That authority has been provided in the Constitution as CEC. His (Chawlas) continuation as a member will subvert the holding of free and fair elections, said BJP general secretary Arun Jaitley.
But the Congress sprang to Chawlas defence. There is no need for Mr Chawla to resign. He has acted most impartially, party general secretary Digvijay Singh said.
The CECs recommendation has its genesis in a petition filed by BJP leader Jaswant Singh in the Supreme Court,seeking a direction that a complaint signed by 205 MPs in March 2006 and sent to then President A P J Abdul Kalam seeking removal of Chawla for his bias in favour of the ruling party be forwarded to the CEC. The BJP leader withdrew his petition after the CEC told the SC that Article 324 (5) of the Constitution empowered him to recommend action against an Election Commissioner on the basis of information,which comes to his knowledge during the course of his functioning as the CEC or on the basis of any formal representation or petition filed before him by a political party or by any person or body.
In the former case,it would be an exercise of suo motu powers by the CEC,while in the latter case he would be acting on the basis of the petition or representation filed by a third party, read the CEC affidavit which was submitted in the SC on August 7,2007.
However,during hearing,counsel for the Government of India questioned the CECs contention and argued that only the Union Government had the power to take action against an Election Commissioner. But the Bench,allowing withdrawal of the petition,said the petitioners could make a representation to the CEC,who would decide them in accordance with law. The Bench also said it was keeping all issues raised in the petitions open and was not expressing any opinion on the merits. We are not saying whether CEC has the power or not, the court said,pointing out that in case anybody was not satisfied with the decision of the CEC,he could come to the court.