A media report has today indicated that the Chief Election Commissioner Shri N Gopalaswami has recommended to the president the removal of the Election Commissioner Shri Navin Chawla presumably on the ground that his continuation as a member of the election commission is not conducive to the conduct of free and fair elections. The chief election commissioner appears to have recommended the removal of Shri Chawla on the ground of political bias. Free and fair elections are the hallmark of India’s parliamentary democracy. The election commission is a politically detached constitutional authority entrusted with the responsibility of conducting free and fair elections.
It is the political executive that makes appointments to the election commission. A former chief election commissioner Shri BB Tandon, before he relinquished office, had recommended to the President of India that a change in law be considered that the power to make appointments to the election commission be taken away from the political executive and entrusted to a collegium which would ensure that the persons so appointed are free from any bias.
If there are reasons to believe that a person suffers from political bias, he is unfit to be a member of the election commission. His continuation as a member will subvert the holding of free and fair elections.
A large number of MPs belonging to different political parties had sought the removal of Shri Chawla. The constitutional authority to recommend the removal of an election commissioner is vested only in the chief election commissioner. The second proviso to Article 324 clearly states that — “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 Supreme Court in a 1995 judgement in the TN Seshan’s case commented — “In the case of the chief election commissioner he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court, whereas the election commissioners can be removed on the recommendation of the chief election commissioner.”
It is ironical that an effort is being made in the face of a clear constitutional provision to question the authority of the chief election commissioner to recommend the removal of an election commissioner. The authority to make such a recommendation does not vest in the election commission; it vests only in the chief election commissioner. An election commissioner cannot be privy in making recommendation on his own removal.
The recommendation of the chief election commissioner is binding on the Central government. This is on account of the following reasons:
1) The allegation against Shri Navin Chawla is that he suffers from political bias and has conducted himself in a biased manner. The beneficiary of the bias is the ruling party. The Central government comprises the ruling party. Obviously, the beneficiary of the bias cannot decide the existence of the bias. The constitutional authority prescribed in the Constitution is the chief election commissioner.
2) The ‘biased’ conduct of the delinquent member of the election commission has taken place in closed doors. The public is not privy to the conduct of business. As the head of an institution, it is only the chief election commissioner who is in a position to adjudicate the bias conduct of a member.
3)The word ‘recommendation’ used in the second proviso of Article 324(5) has to be construed in the context of Article 324 coupled with the constitutional object of strengthening the independence and fairness of the election commission as a binding recommendation of the election commission. There is a similar analogy in Article 217 of the Constitution which provides that a Judge of the high court shall be appointed ‘in consultation’ with the Chief Justice of India.
The word ‘recommendation’ is of a stronger impact and important than the word ‘consultation’ and yet the Supreme Court has held in the Judges Appointment case that on features such as integrity, capacity, character, merit and fitness of a person to be appointed it is the judicial institution and not the executive which would have any specific information.
It is important that the recommendation of the chief election commissioner is made public. The government must make public as to on what grounds the chief election commissioner has held Shri Navin Chawla to be suffering from political bias. Inspired leaks in a friendly section of the media are not a substitute for making the recommendation of the chief election commissioner public. People are entitled to know whether the ground of political bias are real or fictional.
The allegation of political bias already stands strengthened by the fact that initially when over 200 MPs submitted a memorandum to the president, the Prime Minister Office refused to forward it to the chief election commissioner for his recommendation. The General Elections are nearing. The notification for holding the General Elections is only a few days away. Indian parliamentary democracy rests on the holding of free and fair elections. A person prima facie indicted on the ground of political bias cannot conduct this election.
Exceprts from a statement by BJP General Secretary Arun Jaitley in New Delhi on January 31, 2009
