Friday, February 13, 2009

Gopalaswami's Letter and Ram's Reply

I have been busy lately and apologize for not being able to respond to all the comments regarding my previous post. Regarding the CEC's letter and N.Ram's reply to it, a careful reading indicates several things.

1. In para 1, Gopalaswami explains that six months of the delay was because of Chawla. His statement is 'More than half the delay is explained by Mr. Gopalaswami’s keeping the BJP’s petition to himself between January 30 and July 20, 2008'. Does that mean that less than half (but perhaps nearly half) the delay is due to Chawla? Clearly, N.Ram is not denying the entire truth of the statement, only perhaps contesting it marginally.

2. Regarding para 2, he simply reiterates his view that the CEC's suo motu recommendation is unacceptable and therefore the CEC should not have not have entertained the BJP's complaint. But Ram does not argue that going by the CEC's view, his actions were not only acceptable but proper - after all, it makes no sense to have the EC in the room if the complaint is against him.

3. Ram claims that 'Mr. Gopalaswami’s version of Mr. Chawla’s stand in a 43-page counter affidavit filed in the Supreme Court in June 2006 is highly misleading'. Why is that? He says he quotes one sentence from the affidavit on the CEC’s recommendation being a condition precedent for the removal of an EC but not this clear assertion in page 17 of the affidavit: “I therefore submit that in terms of Art. 324(5) of the Constitution of India, the recommendation of the Chief Election Commissioner becomes relevant only in an instance where the appointing authority, i.e., the President (acting on the aid and advice of the Council of Ministers) takes a decision to remove an Election Commissioner. I submit that, however, the recommendation of the Chief Election Commissioner is neither binding nor mandatory, definitely is not contemplated while considering the appointment of an Election Commissioner.” The issue being addressed here is whether the CEC's recommendation to remove an EC is 'binding or mandatory' for the President, a matter that becomes relevant only after the CEC has made his case. Note that the statement says nothing at all regarding the relevance of a reference from the President to the CEC before the inquiry is initiated which is the question before us. It is therefore Ram who is being misleading here.

4. Ram argues that other material suggest that Chawla does not necessarily share Ram Jethmalani's submission in the SC regarding the CEC's powers (he says that Jethmalani needs to explain or correct himself in view of Desai's observations - in other words, Jethmalani does not know anything about the constitution and is not qualified enough to talk about it!). The argument has its strengths but given that the SC has not laid down the law, it is not wrong for a constitutional authority to act upon what he considers to be a reasonable view (even if the SC eventually takes a contrary position) so long as it is done in good faith. The CEC's claim is just that when he says: "The very fact that many eminent jurists have taken a similar view goes to show that the existence of suo motu power is equally plausible." Ram does not address why Desai's view is so sacrosanct when alternative opinions are also perfectly plausible. Instead, he simply chooses to swear by it insisting that that indeed is the 'widely accepted view of constitutional experts'. I suppose that list of experts does not include Soli Sorabjee, Ramaswamy Iyer or Vivek Reddy. Even Fali Nariman is not as categorical as he has been made out to be.

5. Ram is however right on one thing - the two judge bench which wrote the August, 2007 order explicitly stated that it was not addressing the substantive questions at all. Given this fact, the sentence that Gopalaswami quotes in para 5 must be understood as summarizing Jethmalani's views and not as the Court's own position (sadly, courts often do not use inverted commas or put headings when they are summarizing the arguments of one side).


Anonymous said...

LiC's inconsistent reply starts from mismatch of references, Gopalswami refers to Jan 31st report, while Ram picks up Feb 3rd article.
On para 2, Gopalswami clearly explains the rationale for receiving BJP delegation in his chamber and EC being the subject, cannot and should not be party to discussion. Ram attributed motives to this meeting and made a big issue of it, while in the response change the stance on the validity of meeting the delegations
Para 3 onwards, is the same rhetoric on constitutional validity of suo motu powers which at this point is a open subject and Ram certainly cannot be the deciding agent.

It clearly turns out there is no coherent response to Mr. Gopalswami's letter and except few letters published in Chindu on the response, the readers at large understood clearly the gaps and bias of Ram. In addition not a word about misdeeds of Mr. Chawla's and partisan behaviour.

Pilid said...

Correct Anon. Except regarding the implications of the August judgment, Ram's reply does not really address Gopalaswami's points.

Anonymous said...

Time was when The Hindu was looked upon as THE source for factual presentation of news - with Ram's takeover, there has been a total surrender to one-sided 'views'.In this instance, not a word was said against an obviously partisan Chawla while poor Gopalaswami takes all the blame. Unless the Chindu is taught a lesson thru Market Economics - readres leaving it in droves - Ram will never learn.

Anonymous said...

I came across this blog only today... I am a regular reader of Hindu, and found your blog interesting.

Anyway, I did write to the editor about some questions I had regarding CEC's actions. This was not published :-)


There have been some questions that have been bothering me about the entire Election Comission episode. Your editorial today ( and other reports previously ) mention this - an Election Commissioner “cannot be removed from office except on the recommendation of the Chief Election Commissioner.” Now, to the best of my knowledge, the CEC, Mr. Gopalaswami only recommended the removal of the election commissioner, an action which is well within his purview. So, what exactly did he do wrong in the constitutional context?

The Supreme Court also mentions that he is first among equals, and "“the 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 ". I couldn't agree more with this statement, but doesnt giving the CEC only the option to recommend and not the power to remove a Election Commissioner a good example of not allowing him/her to work according to his/her whims and fancies?

All this while, we have been inherently been assuming that the Election Commissioner, Mr. Navin Chawla is not guilty. What if he is guilty? Doesn't that amount to destroying the spirit of the Commission? Is that a permissable option? How is that a lesser crime compared to the CEC's recommendation? If, in the informed opinion of the CEC, an EC is biased, doesnt it become his bounden duty to report accordingly? And are we really expecting a government in power to remove an EC accused of being biased towards it?

Agreed that the sanctimony of the institution is far more important than individual egos, but I dont think we should make a judgement call and vilify Mr. Gopalaswamy. Surely, a 500 page report would not have been prepared based only on assumptions. Your observation that this action will open the doors for more and more complaints to pour in should not stop us from making informed judgements and at times critical decisions.