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Monday, Sep 16, 2019

Commission vs Commissioner

A constitutional crisis appears to be brewing with the CEC Gopalaswamy's claim that Article 324 (5) gives him power to remove an EC, writes Pankaj Vohra.

india Updated: Aug 13, 2007 00:07 IST
Pankaj Vohra
Pankaj Vohra
Hindustan Times

A constitutional crisis appears to be brewing with Chief Election Commissioner N Gopalaswamy undertaking a 180 degree turn. He now claims that Article 324 (5) of the Constitution gives him the power to remove an Election Commissioner. His view has not been endorsed either by his colleagues or the government and has led to a piquant situation where the Election Commission could very well become a divided house with the CEC being in a minority.

The crisis that may develop could also result in the beginnings of an impeachment process for the CEC himself. In the 1990s, a Supreme Court judge had escaped impeachment proceedings after allegations of irregularities had been levelled against him. But in the case of Gopalaswamy, the charge could be that of going against the spirit of the five-member Supreme Court judgment in the TN Seshan case, and the seven-member judgment in the Shamsher Singh case. To escape impeachment, Gopalaswamy may end up moving the apex court with the request that the matter be heard by a constitutional bench of either five or seven members.

The body that is responsible for conducting free and fair elections is in the news for the wrong reasons with the other two Election Commissioners, Navin Chawla and SY Qureshi, disagreeing with Gopalaswamy. And contrary to what is being projected by a section of the media, these two enjoy equal powers with the CEC whose position is primus inter pares (first among equals).

The crisis has developed following the pending demand of the NDA for the removal of Navin Chawla as an Election Commissioner. The Supreme Court had last week allowed BJP leader Jaswant Singh to withdraw his petition against Chawla. The court had ruled that it was allowing the petitioners to withdraw the petition without expressing any opinion on the CEC’s powers vis-a-vis his fellow Election Commissioners. However, the confusion started with Gopalaswamy claiming in an affidavit that he had suo motu powers to act against his fellow Election Commissioners.

This position is also a departure from the stand taken by former CEC B.B. Tandon, apparently after he sought the best legal advice — that he did not have suo motu jurisdiction over his colleagues. Tandon had inferred this after 205 MPs had gone to the President against Chawla and a copy of the petition was handed over to him by BJP leader, V.K. Malhotra. It can be safely presumed that after going through every aspect of the matter, Tandon concluded that the CEC could not act suo motu and must wait for the President to forward such a petition and, therefore, refrain from initiating an inquiry on his own.

The fall-out is that in the said matter, if the CEC entertains any petition officially, he will be reduced to a minority. Therefore, his recommendation will be a minority recommendation and not the view of the full commission. Thus, it will have no grounds to be entertained. Even in the Seshan case where the former CEC tried to humiliate his then colleagues M.S. Gill and G.V.G. Krishnamurthy repeatedly, the apex court had put Seshan in his place and had defined the powers of the other two making them equal in all respects in the conduct of the commission except administrative matters. Anybody else in Seshan’s place would have resigned after the severe strictures passed by the Supreme Court.

What is surprising is that after the 1993 amendment to the Act that governs the Election Commission, successive CECs — and even Gopalaswamy — had insisted on electoral reforms, wherein their stated position has been that the CEC and the ECs were equal to each other. In order to keep the EC insulated from external pulls and pressures, the said clause cited by Gopalaswamy now needs to be amended to provide the same protection and safeguard in the matter of parity for removal of the CEC with the ECs. In a recent meeting, Gopalaswamy had told the government through K.N. Chaturvedi, Secretary of the Department of Legislative Affairs, that these reforms must be carried through.

But he surprised everyone by taking a U-turn to claim that he has the powers to act against his colleagues, something disputed on TV by both Qureshi and Law Minister Hansraj Bhardwaj. The Prime Minister is also understood to be opposed to the CEC’s stand. It is common-sense that the Law Ministry may deliberate on the matter, as also some other legal experts may give their opinion.

While it is for the legal eagles to fight over the finer points of the various interpretations, the controversy is lowering the image of the Election Commission. While Chawla is being accused of being close to the Congress, Gopalaswamy’s detractors claim that he was acting in this manner because of pressure from the BJP, in whose government he was the Home Secretary under L.K. Advani. There are also allegations that Gopalaswamy’s proximity to Advani goes back to when the latter was the I&B Minister during the Janata Party rule.

However, all these charges are not doing any good to our system. One has to see how Chawla and Gopalaswamy conduct themselves while holding their august offices. It is not Gopalaswamy vs Chawla or the BJP vs the Congress. The ambiguity over the power-sharing and the role of the CEC vis-a-vis the ECs needs to be defined once and for all. It is not a case of individuals squabbling but a case where the role of functionaries appointed as per our Constitution has to be defined.

It will greatly help matters if the political parties keep out of this crisis and not contribute to debunking an institution it has taken 60 years to build to its present level of credibility. If the crisis persists, then impeachment of the guilty is perhaps the only solution. Between us.

First Published: Aug 12, 2007 23:46 IST