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).

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.