The row in Election Commission of India is not new. The row between commissioners and CEC takes heavy toll in terms of erosion of authority. Why does such quarrelling take place; what are legal position of CEC and commissioners vis-a-vis the ECI.

Om Prakash Yadav

The row in Election Commission of India (ECI) has taken a political tune as all the major political parties are playing their own lyrics orchestrated by political music. The inside bickering in ECI is not new and has been occurring time and again. The first major controversy arose during T.N. Seshan s regime when Seshan and Krishnamurti, one of the then EC locked their horns in order to establish their own hegemony and run their own writs. The present row originated owing to the letter which the CEC, has written to the President of India recommending the removal of Navin Chawala, the EC for his alleged acts of commission and omission under article 324 (5) of Indian Constitution. This letter sparked off a major political controversy because the BJP has come openly in rescue of N. Gopalswami, whereas; Congress and other UPA constituents have pledged their support to Navin Chawala. This controversy has incited a debate also in legal luminaries and judicial domain. The issue which has again come to fore is

that whether or not the CEC can suo motto initiate inquiry and recommend the removal of the other ECs? The question has become vexed also because the provisions of the Constitution in this regard are somewhat translucent on this issue. Article 324 of the Indian constitution provides for the superintendence, direction and control of election to be vested in the Election commission. Clause 5 of this Article provides for the Subject to the provisions of any law made by the Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. The above provision makes it amply clear that the ECs can be removed by the President, the appointing authority, but the CEC can only be removed by a process of impeachment similar to that of a Supreme Court Judge. The message is

clear; the father of constitution has conferred on adequate amount of independence on the ECI and also has guaranteed protection to it against any undue political and executive interference. It is also a fact that the CEC and ECs are equal, CEC being the first among the equals, this however do not bring all the ECs at par with the CEC. It seems that the principle of check and balance as well as superiority and subordination blended with administrative hierarchical concept has been enshrined in the above provisions of the constitution. The Criminal Procedure Code (Cr.P.C.) of 1973 can be taken into account to explain above principle. Section 20 of this code provides for appointment of Executive Magistrates and the District Magistrates. It speaks of the principle that District Magistrate is also an executive magistrate and all executive magistrates are equal, but the district magistrate is first among the equals. Further section 21, 22 and 23 make it clear that the executive magistrates, including the SDM, who is also an executive magistrate are subordinate to the district magistrate. Some may take it as an absurd comparison, but the principle of the same administrative hierarchical concept has been applied in the Election Commission also. Now coming to the question which remained unanswered is that whether the CEC can recommend suo-motu to the President the removal of ECs without the Presidential Reference? The Constitutional bench of the Supreme Court

has ruled in the famous T.N. Seshan Vs Union of India in 1995 {5 SC, 337;(1995)4 SCC 611} that if power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs if they are required to function under the threat of the CEC recommending their removal. This judgment is said to be landmark vis-a-vis the functioning of the ECI. The Supreme Court was of the opinion that the in-dependence of ECI is more important than the supremacy of CEC. In fact the fathers of our Constitution had rightly infused a large amount of independence and sanctity in the ECI which is also a custodian of the Constitution. Dr Bhim Rao Ambedkar, the father of Indian Constitution, had said in the constituent assembly that the removal of CEC should be done only through a process of impeachment. The idea was the same, to confer independence to the Commission. But unfortunately over a period of time certain amount of aberration has crept into this constitutional body and has turned it into a hub of hobnobbing and bickering. So far as the grounds for inquiry against Navin Chawla and subsequent recommendation to his removal is concerned, the matter goes back to 2006 when L.K.Advani along with 204 other MPs submitted a petition to the President of India seeking removal of Navin Chawla for his alleged acts of commission and omission during emergency and his alleged proximity to the ruling Congress Party. The same petition was

forwarded to the CEC for necessary action. It is in this context the CEC asked explanation from Navin Chawla and after being unsatisfied from the Chawla s answer, CEC made this recommendation to the President. The entire legal fraternity divided over this issue. One school of opinion says that the CEC can recommend removal of any EC suo-motu, whereas other opines that the CEC can only act when he is sought to do so by the president. Coming to the issue of taking action on the recommendation, some stalwarts say that the recommendation is binding on the government, whereas many other do not subscribe to this view and suggest that the government has every right to reject the recommendation. But it seems that if the CEC is not empowered to make a suomotu recommendation, and can act only on the presidential reference, then how can the independence of Election Commission and its insulation from government s interference be kept intact? It appears that misreading in between the lines is being done by many of us. If the CEC is supposed to act only when he is asked to do so, then why is this provision made in the constitution stating therein that the ECs can be removed only the recommendation of the CEC? We are non-deliberately skipping the core issue that, why after all such bickering and quarrelling are taking place in this august institution of sublime importance? The very practice

of appointing very senior bureaucrats to the post CEC and EC just after their retirement is the crux of all the problems. The senior most bubus sitting at the helm of affairs can hardly remain apolitical and in a bid to get some post retirement placement, they start lobbying in the power lobby. Many of them get reward and those who are left start criticising the government in hope of winning over the sympathy of parties in apposition so that they can be compensated when these parties return to power. N. Gopalswamy had served as home secretary under Advani, similarly Chawla had been secretary to Lt. Governor during emergency. Gopalswamy was made EC just after his retirement by the NDA government, whereas Chawla was handpicked and rewarded by the Congress. Naturally their loyalties shall be put to a litmus test. M.S.Gill was made Rajya Sabha MP after his retirement as CEC, he was subsequently made a state minister in the union cabinet. This step is going to have profound impact on the functioning of EC, as every outgoing EC or CEC would be lured by such rewards which they may get if they pursue the interest of parties in power. Remedies: - Mr. B.B. Tandon the then CEC had made certain recommendations with regard to the long overdue reforms in the EC. These recommendations are eating dust in the labyrinth of power and politics. Here are some suggestions which can be incorporated while taking steps in cleansing and reforming the commission.

1. Rules can be framed that no bureaucrat shall be appointed, nominated or given any office within three years after their retirement. 2. Bureaucrats and judges should not be allowed to join any political party or fight election within three years after th.eir retirement. 3. The selection and appointment procedures for the high offices like EC, NHRC, CIC, other commissions etc. should be made transparent and institutionalised so that the possibility of hand picking is diminished to a zero level 4. A national panel may be prepared for such appointment so that principle of equality and openness is followed. 5. Law can also be framed so that no one is appointed to any constitutional post twice. This would help minimise the chances of doing favour of disfavour by these persons. 6. No judge should also be allowed to undertake any governmental assignments within three years of his retirement. The appointment of retired judges on commissions etc should be discouraged.


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