The decision of Chief Election Commissioner N Gopalaswami to recommend to the President the removal of fellow Election Commissioner Navin Chawla was taken keeping the third Election Commissioner S Y Quraishi in the dark,sources have confirmed to The Sunday Express.
Although Quraishi was not available for comment today,when the CEC had told the Supreme Court that he did have the powers to decide on the fate of the EC,Quraishi,in an interview,had distanced himself from this and said: The decision taken by the CEC is his personal decision and the view of the Commission has not been taken on it.
Experts are divided on the Constitutional validity of the CEC move. Some,like Harish Salve and Rajeev Dhawan said that the Supreme Court does give a window to the CEC to express his opinion or take a call on his colleagues conduct but several experts were critical of the manner in which it was done.
Said eminent jurist MP Fali Nariman,It is most uncalled for and ill-timed. If he wanted to give such an opinion,he should have done so earlier. Why now,when 600 million Indians are getting ready to vote? Can we afford to have a divided EC,trading charges at this point? It appears that the only purpose is to destroy institutions in the country from within.
Former Law Minister Shanti Bhushan echoed this: The CEC has no right to give a view on his own. Appointments and removals are in the governments domain and a view by the CEC is to be given only if his advice is asked for.
Bhushan also questioned the timing. The matter has been pending for many months. If the CEC wanted to give an opinion,why did he wait for weeks before his retirement,which is due on April 20?.
When contacted,former CEC T N Seshan refused to comment. Interestingly,in 1995,when he challenged the decision of the Centre to form a multi-member EC,the Supreme Court ruled in the governments favour,and said that the power of the CEC to give a nod for a fellow-ECs removal has to be backed by cogent reasons.
There are,however,some experts who think that the CEC has a point,and may well have a case. Said senior counsel Rajeev Dhawan: As the Supreme Court said,the CEC could give the nod for the removal of a colleague with cogent reasons,what remains to be seen is what are the grounds forwarded by the CEC to the President. He may well have a case…the Supreme Court did leave a little room for the CEC to be able to take a call of on the conduct of his colleagues. This may force the President to act.
The CEC recommendation has legal backing. The SC had given him liberty to decide the issue as per law. Even otherwise,the CEC can take any decision in the larger interest of ensuring purity of elections. As for the CEC recommendation on Navin Chawla,it is not mandatory for the government to accept it, says senior advocate Vikas Singh.
Senior Supreme Court lawyer Harish Salve said that the CEC has given his view consistent with the directives of the Supreme Court and there could be no motives attached to his action or the timing. He said the BJP had made the representation to the CEC and the issue was before him. He dismissed the issue of creating a crisis and said that the Commission could continue to run its business as usual.