The difficulty with forming an opinion on the Chief Election Commissioner recommending the removal of Navin Chawla, one of the two Election Commissioners, is that very little information is available. The CEC has confirmed that he has written to the President. The charge against Mr Chawla is said to be bias. Since this is suo motu action by the CEC (and not in response to the various allegations made over the years by the Bharatiya Janata Party), no details are available. If the CEC has unearthed some ‘parking violation’ kind of misdemeanour, it should not be taken seriously because the timing of his recommendation (shortly before the general elections and three months short of the CEC’s own retirement) begs questions. If, on the other hand, he has indeed unearthed serious misconduct, then removal should be considered.
The government seems to think poorly of the CEC’s letter, and has stated that it does not intend taking any action on his recommendation. This means that the BJP (which has a three-year history of complaining about Mr Chawla — to the President, the Supreme Court and the CEC) will up the ante; a reference to the Supreme Court should be expected, and much noise during this month’s brief Parliament session. If nothing much results, Mr Chawla will become the CEC right in the middle of the general elections.
The legal technicality that this situation poses is whether the CEC’s word is final. The Constitution states that no election commissioner can be removed, except on the recommendation of the CEC. Such a recommendation is therefore a necessary but not a sufficient condition. A moment’s reflection will make it clear why this should be so, because giving the CEC untrammelled powers to dismiss his colleague(s) on the Commission (who are equal to him in rank and position, other than the fact that the CEC chairs meetings), can make him a virtual dictator—and is like giving the Chief Justice of the Supreme Court the power to dismiss his colleagues on the Bench. It would also be asynchronous if the appointing authority for an election commissioner is the President, but the de facto dismissing authority is the CEC.
The opposite difficulty is that, if the charge against Mr Chawla is that he favours the Congress, then a Congress-led government is hardly the body that should be deciding on his dismissal. Perhaps this should be one of the rare cases where the President is asked to exercise his/her considered judgment, without being obliged to go by the advice given by the Prime Minister. What is clear is that the point of law needs to be settled; the Chawla episode would be a good opportunity to put in place a clear mechanism for review of the CEC’s recommendation before any decision is taken.
The Election Commission has so far been above suspicion, and has won plaudits all around for the manner in which it has conducted free and fair elections. What the latest episode does is to create doubt about its functioning. Perhaps the original sin was the appointment to the Commission of people who are widely believed to have political alignments—Mr Chawla’s name has been associated with the Gandhis (first Sanjay and then Rajiv/Sonia) since the days of the Emergency; and there are those who will say that the CEC has his own loyalties. While clearly laying down dismissal procedures, it may be a good idea to also create a bipartisan method for appointing election commissioners, with the Prime Minister and the Leader of the Opposition, along with the Vice-President, agreeing on nominations.