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On whose word?

The issue is larger than the fate of the CEC and his colleague

Written by Soli J. Sorabjee |
February 4, 2009 1:19:01 am

Reference to Constitutional Assembly debates and constitutional provisions is necessary to understand the issues involved in the current Gopalaswami-Navin Chawla controversy. Part XV of the Constitution was expressly enacted to entrust the responsibility of holding free and fair elections to an independent Election Commission. Its paramount objective was to insulate the commission from pressures from the executive of the day and to ensure its independence.

This objective is subserved by two provisos to Article 324(5). The first proviso stipulates that CEC shall not be removed except by the process of impeachment as in the case of a high court or a Supreme Court judge. The second proviso states that the “Election Commissioner or Regional Commissioner shall not be removed from office except on the recommendation of the CEC.” The words are not “except on the advice of the President”,which means advice of the Council of Ministers. Therefore the continuance in office or removal of an election commissioner or a regional election commissioner cannot be decided by the executive government.

Dr Ambedkar’s statement in the Constituent Assembly on June 16,1949 on this subject is decisive. He inter alia stated that “in the matter of removal of the other Commissioners [Election Commissioners,the President can only act on the recommendation of the Chief Election Commissioner” and that was “a very important limitation” on the president’s power. Thus it is clear that it is the CEC alone who is competent to recommend the removal of an EC. Besides the CEC prima facie would be the best judge to appraise the behaviour and conduct of an EC within the four walls of the Commission.

The vexed question is about the effect of the recommendation made by the CEC. Is it binding on the government or can the government reject it on the ground that the matter of removal of an EC vests entirely with the government of the day? Reference may be made to the judgment of the Supreme Court in the case of T.N. Seshan where the Court inter alia observed:

“These two limitations on the power of Parliament are intended to protect the independence of the CEC from political and/ or executive interference. 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 CEC… 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… It is necessary to realise 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.”

These observations negative the claim that it is within the domain of the government to decide about the removal of an EC contrary to the recommendation of the CEC because in that case the manifest purpose of the second proviso,namely that an EC “shall not be removed from office except on the recommendation of the CEC”,is plainly defeated. Therefore having regard to the paramount objective of Part XV,which is to eliminate political influence,the correct position would be that as a general rule the recommendation of the CEC would be binding upon the government unless there are cogent and convincing reasons for rejecting it. For example,if in a given case,the CEC in recommending removal of an EC acts capriciously or if his recommendation is not based on valid reasons which are conducive to the efficient functioning of the Election Commission as an independent body free from bias or partiality. Save such exceptional cases the CEC’s recommendation should be binding on the government.

The argument that this runs counter to the general principle that the president is bound to accept ministerial advice overlooks that there are well-settled exceptions to the general rule. One of the exceptions is that where bias would be inherent from the very nature of things in the advice of the Council of Ministers,in which case the governor is not bound to act according to ministerial advice. This issue was dealt with by the Supreme Court in MP Special Police Establishment vs State of MP. The question in that case was whether the governor was bound to accept ministerial advice or could act in his own discretion in the matter of prosecution of two state ministers. The Supreme Court ruled that there may be situations which are not amenable to ministerial advice and real danger of bias may be one such situation. The Court held that if the governor cannot act in his own discretion there would be a complete breakdown of the rule of law inasmuch as it would then be open for governments to refuse sanction for prosecution in spite of overwhelming material showing that a prima facie case is made out.

Applying this principle by analogy and in order to ensure that the paramount objective of insulating the Election Commission from the influence of the government of the day is not frustrated,it would follow that the president is not bound by ministerial advice in the matter of removal of an EC. Holding otherwise would confer on the executive the power to shield in a hypothetical case a palpably biased EC. It would also in effect vest the power of removing or continuing an EC in the executive which would impair the independence of the Election Commission. A political party benefiting from the bias of an EC cannot realistically be expected to accept the CEC’s recommendation for removal of an EC on the ground of bias.

There is no apparent reason why the CEC’s recommendations for Chawla’s removal be not disclosed.

Consequently one is not aware of the grounds which prompted the CEC to recommend his removal. Hence it would be premature and speculative to adjudge the CEC’s action or its timing in view of his explanation about the date when he received Chawla’s response.

Gopalaswami and Chawla are transient personalities in the context of the extremely important constitutional principles regarding the repository of the power of recommending removal of an election commissioner and furthermore the acceptance or rejection by the government of the CEC’s recommendation.

The writer is a former Attorney General for India

express@expressindia.com

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