Law Minister H R Bhardwaj'sassertion that it is the Union Government'sauthority and not that of the Chief Election Commissioner to remove Election Commissioners is a blatant attempt to make the Election Commission subservient to the Government. A fiercely independent EC is the backbone of a democratic polity. The Commission would lose its autonomy and with it credibility. If the powers to appoint and remove ECs were to be vested in the Government, the Minister is deliberately misreading the Constitution. Article 324(5) inter alia says: ?Provided further that any other Election Commissioner or Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner?. The autonomy of the EC was protected by the founding fathers of the Constitution by empowering only the CEC to recommend removal of an EC. Article 324(3) says the CEC will act as Chairman of the Election Commission negating the Minister'scontention that all members of the EC are equal. Of course, all decisions in the Commission are taken by majority but CEC remains the first among equals. He can be removed only like the judges of the Supreme Court. It may be argued that there is a lacuna in the law and that ECs too need to be given the same protection. N Gopalaswamy had on an earlier occasion pleaded for changing the law but it has not been done. Yet, why blame him if the law as it exists is faulty. He has acted within the parameters of the law of the land.
It is illogical on the part of the Minister to argue that since the Government appoints CEC and his two colleagues, the power to remove them automatically lies with the Government. Does he need to be reminded that the Government has the power to appoint judges of High Court but has no authority to remove them? That is what protect their independence and enable them to be objective and neutral even in cases where the state is a party. The Law Minister is obviously acting as per the directions/desires of the extra-constitutional authority residing in 10, Janpath. His assertions have no constitutional or legal legs to stand on but surprises no one given the Congress party'smindset reflected during the hated emergency. The Minister and the Congress party'sstand on the controversial EC Navin Chawla will be remembered as a blot on Indian democracy as is the case with the emergency imposed by the late Smt Indira Gandhi.
It is absolutely wrong to suggest that the CEC had taken suo moto action against Chawla. The fact is that BJP took a strong objection to Navin Chawla'sappointment as Election Commissioner by the Congress Government in 2005 on several grounds, including his partiality towards Congress, financial irregularities and role during emergency. In 2006, the principal opposition party submitted a memorandum to the President APJ Abdul Kalam and filed a petition in the Supreme Court. In 2007, the apex court allowed the party to withdraw the petition after the CEC filed an affidavit claiming he was the sole authority under the Constitution to recommend EC'sremoval. The BJP then filed a petition with CEC that asked Chawla in 2008 as to why he shouldn'tbe sacked citing a dozen instances of his partisan role as EC. Chawla adopted dilatory tactics?he sought advice from the Law Ministry ? that became his legal adviser ? went on a month'sleave and took his own time in responding that CEC has no authority to remove him. People have a right to know whether he responded to the charges leveled against him by the CEC that came to Gopalaswamy'snotice during their work in the Commission.
In a bid to obfuscate the issue, the Congress party has blamed the CEC of partiality towards BJP by making the silly comment that the CEC and BJP were ?acting in remarkable tandem?. Would you say the judge and the complainant are working at remarkable tandem if the judge is convinced by the complainant about the guilt of the accused? As for Chawla, no one expects him to quit gracefully. He is not bothered about proprieties. He had the audacity to use his connections with the Nehru-Gandhi family to receive bounties from the Congress Government in Rajasthan and persuade Congress members of Parliament to donate liberally to private trusts floated in his father and wife'sname. In fact, many who know him or his track record are convinced that he is not a person fit to be appointed to a Constitutional office where political neutrality is the keyword. His record during the hated emergency is a blot on the civil services. As private secretary to the Lt. Governor of Delhi, Chawla was the conduit through which Sanjay Gandhi, the extra-constitutional authority of the dictatorial regime, acted in the national capital. Emergency Excesses Enquiry Commission headed by Justice J C Shah, had indicted Chawla and his cohorts in Delhi Police in no uncertain terms. The Commission in its findings said, ?Their approach to the problems of the period relating to the citizens was authoritarian and callous. They grossly misused their position and abused their powers in cynical disregard of the welfare of the citizens, and in the process rendered themselves unfit to hold any public office which demands an attitude of fair play and consideration for others. In their relish for power, they completely subverted the normal channels of command and administrative procedures.??
B S Raghavan, former member-secretary of the high powered committee set up to advise follow up action on the Shah Commission'srecommendations, points out that shocking material contained in the Commission'sreport indeed made Chawla unfit to hold any public office and he deserved to be summarily dismissed from service without any further inquiry or proceedings, invoking the special powers under provisos (b) and (c) of Article 311 of the Constitution. This precisely was the fate Chawla would have met with but for the fall of the Janata Party Government and return of Smt Indira Gandhi to power resulting in the restoration to coveted posts with a vengeance of all those indicted by Justice Shah. Appointing a person with such a background to the Election Commission that is the fountainhead of all other institutions of democracy was itself a brazen defiance of norms of accountability and decencies of public life. To allow him to continue in office would pollute the purity of the entire election process and undermine the credibility of a sensitive constitutional authority.
It is most unfortunate that certain legal luminaries are making uncalled for insinuations against the Chief Election Commissioner. The right to question the legality of any decision or action is inherent in a democratic polity, but imputing motives to a constitutional authority is to undermine the credibility of the institution. Constitutional experts and legal luminaries need to confine themselves to interpretation of the constitutional and legal provisions and the propriety of the action proposed. Further, it is incumbent on dispassionate analysts not to import hidden meaning and purposes into the recommendation made by the CEC at the fag end of his tenure. Since UPA Government appears to be bent upon to promote Chawla as CEC, it will be for the apex court to take a final call when the matter is raised before it.