Monday, February 09, 2009

Constitutionality of the CEC's Recommendation

There has been considerable discussion in The Hindu regarding N.Gopalaswami’s recommendation to the President to remove EC Navin Chawla. As anyone who has been reading the newspaper in recent days knows, the Chief Editor N.Ram who broke the story has since then been persistently canvassing his view regarding the illegality of Gopalaswami’s move. Not only was this point made in several news items but it was repeated in an editorial. Additionally, Ashok Desai’s opinion to the former CEC B.B.Tandon was published on its pages as well as that of retired Justice S.Mohan’s opinion yesterday. The consistent point of all these opinions has been that the CEC has no authority to make a suo motu recommendation and must await a recommendation from the President seeking the removal of the EC before he is entitled to act.


The trouble with this claim is that it has no obvious basis in either the history, text or intent of Art.324(5) of the constitution. I suggest to all the readers to read carefully both Desai’s opinion and Justice Mohan’s opinion wherein they quote directly from the Supreme court judgments first before pronouncing their own views. The point to note here is that their common inference does not at all follow from the passages they cite.


All these commentators and Ram himself are however entitled to their views and to canvass for the same in the op-ed pages. What I would have appreciated though in light of these facts is a tad of modesty. While Fali Nariman was reported by The Hindu to have supported this line of reasoning, he was at least honest enough to admit that this is a grey zone in the law that remains to be clarified by the Supreme Court. I saw no such admission of even a remnant of doubt in Ram’s opinion which is what makes his dubious assertions all the more brazen.


There has been a good discussion on LawandOtherThings regarding this question. Read Vivek Reddy’s post as well as Sorabjee’s op-ed in IE which make a more reasonable case on this score. My own view is somewhat similar although I would not go as far as to assert the EC’s guilt nor do I entirely agree that President ought to be generally bound by the CEC’s recommendation unless there are good reasons to do otherwise. Still, I believe that the provision is best interpreted to mean what it says and no more – the CEC is entitled to act on any complaint or no complaint at all, there being no bar as to when he/she might recommend removal of an EC. A reference from the President ought to be treated in the same way as a complaint from a political party but even in the absence of either, an unethical act or breach of duties or obligations by the EC is sufficient cause for the CEC to initiate an inquiry suo motu and recommend action on that basis to the President.


Also read Manoj Mitta’s interesting post wherein he cites how Navin Chawla reversed his views regarding this legal question when it no longer suited his purpose.

9 comments:

Mouly said...

The whole argument about the constitutional validity of CEC's recommendation to remove an EC looks stupid and fraud to me. Probably India is the only democracy where we question and write about the constitutional validity of a recommendation by a highest constitutional officer rather than focusing on the omissions and commissions of the controversial officer. In this whole episode Chawla seems to have gone scot-free and everybody is discussing about the validity of the CEC recommendation and its binding nature on the President. The whole fraud is compounded by the Media joining in and trying every opportunity to invalidate the CEC's recommendation and no question being raised on the moral ground on which Chawla is continuing in office.

Plain reading of Article 324(2) and 324(5) Proviso 1 and 2 states the constitutional intent of the superior authority of CEC in atleast removing other EC's. To argue otherwise would only show the legal acument and its ulterior motive. If the CEC doesnt have an authority of removal over other EC's and if he isnt intended to be a superior officer among the EC's, why then is the first and second proviso to article 324(5) exists in the firts place?? And talking about the constitutional intent, its also pertinent to note the intent for which the office of EC's were expanded to include two additional election commissioners. The Narasimha rao government expanded the office of EC in 1993 deliberately to undermine the then CEC's authority (Read TN Seshan). It was deliberately expanded to veto the decision and powers of TN Seshan. If you happen to follow TN Seshan's comments on that exercise and after, he had specifically stated that the Election commission do not need 3 officer when there was no enough work even for one commissioner!

The sad state of affairs is the role of the media in this whole drama. The Cabinet ministry (The President I guess have to act on the advice of the council of ministers in removing the EC) is sitting pretty by clearly deflecting the core issue of the fraudlent officer in the election commission (as it serves its purpose). The media too has fallen for it for whatever reasons. There has been no writeup or call for resignation of Chawla even on a moral ground. We shouldnt forget that the time is running out and the current CEC is due to retire on April15. The UPA govt and the President will keep mum on this issue till the CEC vacates office and immediately appoint Chawla to the CEC or allow him to continue so that the upcoming elections are conducted favourable to it. With media too playing into to the hands of this corrupt govt, my question (to the media in particular) are -

1) Why isnt that the media investigated or even raised the question of removal and suspension of Chawla from office? A CEC recommending action against his own colleague is not a small matter and that too with enough investigation and prima facie evidence of wrong doing. When there has been sustained campaign for irrelevant and stupid happenings like the Mangalore Pub incident, why is that only a small percentage of that is allocated to such an important issue involving a constitutional figure?

2) is the Media do not want to highlight the omission and commission of Chawla because of his favouritsm to the Congress Party or is the CEC hounded out for his recommendation just because the BJP happen to favour his recommendation or is it because the recommendation as such will be favourable to the BJP?? Are these the ulterior motives of the Indian Media?? Go any extent to oppose the BJP or be seen opposite of the BJP?? Is it ideology? or is the media too hand in glove? How are we going to fight corruption if this is the case??

My opinion on this would have been immediate removal of Chawla as election commissioner based on the recommendation of CEC or atleast immediate suspension from holding the office of Election commissioner pending further investigation. This I assume is never going to happen. Going into the constitutional validity of the recommendation without addressing the core issue is plain fraud on the society.

Anonymous said...

Looks like the ruling mafia (aka, ruling family, aka ruling party) wants to make a mockery of the election commision. Mataji and minions would want the first "C" in CEC to mean "Cheap" rather than "Chief"!

Pilid said...

Good points. Here are some possible reasons for what has happened.

1. Ram got the scoop and as everyone knows, he is ideologically inclined against anyone who might be seen as doing the BJP a favor. It is also possible that the info was leaked to him specifically on the condition that he provide coverage that is favorable to Chawla. Perhaps it was a bit of both.

2. The other problem is that because of the nature of the leakage, everyone knows that the CEC recommended the removal but no one knows why - the press will naturally debate based on what they know rather than what they do not know. It is quite possible that this was deliberately done so as to project Chawla in a good light publicly. If the full details had been released, it might muddy the waters against Chawla even further and spoil his chances of taking over as the next CEC. The limited details that we know about the basis for the CEC's recommendation (which may or may not be correct) came from a Mail Today report. There, it was said that the CEC suspected the EC was leaking confidential information to the ruling party. Apparently Chawla's rebuttals were all largely limited to challenging the legal basis of the CEC's inquiry and he never answered the specific charges against him except for a sweeping dismissal of the claims. If this is so and the full details of the documents became public, the burden would then shift to Chawla to answer the specific charges which might very well sully his image and hamper his chances at succession.

3. Regarding the question of the CEC's supremacy over the other ECs, the point, as you probably note, has been debated by the SC in the context of the Dhanoa and T.N.Seshan cases. In the latter case which currently prevails as the law of the land, in terms of power, the CEC and the ECs are held to be coequal but that fact does not extend to their removal (in the earlier Dhanoa case, the opposite had been held to be the case). Think of it as the position of a tenured high court judge and an additional judge - they might have same powers to decide cases but the latter's tenure is not permanent unless the Chief Justice decides to make it so.

Anonymous said...

You can also read a good post at
http://krishnananth.blogspot.com/
by Krishna Ananth who was with The Chindu in the past.

Bairavi

Harish said...

Good to see Pilid back in action.


Here is something I found on Rediff Message Board.

Going mum!
by Ashariri

Hey guys,

Noticed onething.All these Susan's, Renuka Choudharys and Vrinda Karats and of course NDTV have suddenly gone mum over the abduction of the MLA's daughter and the beating up of her Muslim male friend after the first two days of the incident happening.

Initially words like Taliban Sena,Mangalore Taliban etc were used by NDTV to describe the 'supposed' involvement of Sri Ram Sena in the abduction.They started going mum once reports started trickling in that the abduction could actually be the handiwork of members of some leftist organisations. And chances are that you won't find the Susans and the Renukas take it up anymore. Reason -the colour of their target has started to change - from Saffron to Red!

This clearly shows their political intentions. If they were good intentioned they would have continued their protests, strongly, against the incident, no matter who was behind it.Not just when some,so called Hindu organisation is behind such act.

If there is no scope to attack something Hindu or supposedly Hindu, chances are that these 'Guardians of Secularism' won't come out so strongly against anything.

A wrong is a wrong whether it is done by some Hindu org or Muslim org or some mainstream political party or it's affiliates.Unless you take such a stand your credibility will always be in doubt. And that exactly is the case with NDTV and these Susan's and Renukas.

Arun said...

Cong gets facts wrong while pointing finger at CEC

Obviously, the Congress seems to have conveniently overlooked how Mr Chawla and the other election commissioner could not have been consulted when they had sat through the entire proceedings and put their signatures on the final order.

http://economictimes.indiatimes.com/News/PoliticsNation/Cong_gets_facts_wrong_while_pointing_finger_at_CEC/articleshow/4115259.cms


This is how Chindu reported the same:

http://www.hindu.com/2009/02/12/stories/2009021254641200.htm

Once the Election Commission was informed by the Chief Electoral Officer of U.P. in late November 2007 that a chargesheet had been filed against Mr. Rajnath Singh, Mr. Tandon and 10 others under the Indian Penal Code and the Representation of the People Act, the CEC closed the matter on the premise that the BJP had apologised.

“The matter was not even brought before the full Commission,” Mr. Tewari said.

Anonymous said...

Chief seems to be in a great crusade mode (or, mood)? Centre page is devoted to this subject again. As usual, a some space for the CEC's letter to Chief and a very lengthy (point by point) rebuttal by Chief, as usual, dragging in various other legal luminaries (sympathetic to his pursuation, of course) to his rescue.

When the CEC has politely requested the Chief to give his reply the same prominence as Chief's grandiose expose (published in the front page of the print edition), chief publishes the CEC's letter only in the centre page (CEC should be thankful to Kasturi Building, at least for small mercies).

Seems to be a desperate effort on the part of Chief not only to prevent Chawla's premature exit, but also to make sure that CEC gets a dishonourable retirement.

Anonymous said...

Three different reports which appeared in Chindu today (particularly in the print edition), reflect on the paper's patrika dharma:

The following report appeared on the very first page:

http://www.hindu.com/2009/02/12/stories/2009021256500100.htm

Schoolgirl commits suicide

This is about an incident which happened in Dakshina Kannada and got the prominence because of "a suspected Hindutva fringe group".
-------------------------

There are two other reports which should have equally found their place in the front page, but were buried deep in the interior sections, because these related to the Marxist garden of eden!

http://www.hindu.com/2009/02/12/stories/2009021260441200.htm

Investigating officer in Rizwanur case found dead
---------------

http://www.hindu.com/2009/02/12/stories/2009021260381100.htm

The Statesman Editor, Publisher arrested

This is one is particularly interesting, because,
the Editor and Publisher were arrested "on the charge of insulting the religious sentiment of a minority community".

Anonymous said...

Some more on the Statesman affair.

It turns out that Statesman merely reproduced an article from The Independent.
------------------------

Editor arrested for 'outraging Muslims'

Protests against Indian newspaper over article reprinted from Independent

By Jerome Taylor

Thursday, 12 February 2009

The editor and publisher of a major Indian newspaper have been arrested for "hurting the religious feelings" of Muslims after they reprinted an article from The Independent. Ravindra Kumar and Anand Sinha, the editor and publisher of the Kolkata-based English daily The Statesman, appeared in court yesterday charged under section 295A of the Indian Penal Code which forbids "deliberate and malicious acts intended to outrage religious feelings".

Sections of central Kolkata have been paralysed by protests for much of the past week after The Statesman republished an article by The Independent's columnist Johann Hari. Titled "Why should I respect oppressive religions?", the piece was originally printed in The Independent on 28 January. In it, Hari said he believed the right to criticise any religion was being eroded around the world.

http://www.independent.co.uk/news/world/asia/editor-arrested-for-outraging-muslims-1607256.html