Chief Election Commissioner, N.Gopalsami, is reported to have recommended to the President, that Navin Chawla be removed as Election Commissioner. In doing so, the CEC has relied on Article 324(5) of the Constitution.
A close scrutiny of the Constitution and Article 324(5) conveys without ambiguity that a recommendation from the CEC is a necessary condition to remove an Election Commissioner. It is, however, a grey area as to whether such recommendation alone will be a sufficient condition. It is, however, clear that the CEC has powers to make such recommendations and this has been upheld by the apex court in Dhanoa S.S. vs Union of India (AIR-1991-SC-1745) and subsequently in T.N.Seshan vs Union of India (1995-4-SCC-611).
The substantial point made in these two landmark cases was that while the office of the Chief Election Commissioner is mandatory and not negotiable, appointment of the Election Commissioners are discretionary and the President, at any given time, can do without appointing the Election Commissioners. However, once they are appointed and the Commission made into a multi-member body, all business of the Commission shall be transacted unanimously and in the event of differences, the majority’s opinion shall prevail.
Thus, there is nothing in the law that prevents the CEC’s power to recommend the removal of an Election Commissioner. And Mr. Gopalsami’s recommendation to the President that Mr. Chawla be removed cannot be faulted for being unconstitutional. Moreover, the CEC has done this only on the basis of a series of representations against Mr. Chawla ever since he was appointed as Election Commissioner in May 2005. The CEC, after having scrutinized these, has now come to the conclusion that there is some firm basis behind the apprehension that Mr. Chawla may not act without bias and in a non-partisan manner.
All this are important in the months ahead than between May 2005 and now because Mr. Chawla happens to be the natural claimant to be the CEC after April 20, 2009 and thus preside over the Commission in conducting the general elections due by that time. CEC Gopalsami is due to remit office on April 20, 2009. Although there is no such stipulation that the senior most EC shall be made the CEC, this has been the convention so far. Moreover, given Mr. Chawla’s past and his record as a bureaucrat, there is hardly any reason to expect the Congress-led UPA Government dumping him.
It will be appropriate, at this stage, to recall his past. In doing so, it is important to go beyond such obvious details as his date of birth, his schooling, his academic record and the fact that he was a 1969 batch IAS officer, belonged to the Delhi & Andaman Nicobar cadre and held several important assignments before being appointed Election Commissioner on May 16, 2005. He was examined by the Commission on charges involving illegal detention orders under MISA; treatment of detenues in jails; Confirmation of detention orders by the Lt. Governor in four-monthly review and working of the Administrative Review Committee; and the contemptuous attitude of the Delhi Administration to the Ministry of Home Affairs.
And among such details are the following extracts from the report of the Shah Commission of Enquiry:
• Shri Navin Chawla was not one of the members of the Review Committee, but the evidence shows that he used to attend these meetings regularly and take part in the deliberations.
• Though Shri Navin Chawla had no position in the jail hierarchy, he was exercising extra-statutory control in jail matters and sending instructions in all matters including the treatment of particular detenues.
• The case of Smt. Promila Lewis offers a striking example of the scant regard the Lt. Governor had for the instructions from the MHA. … Shri Kishen Chand has stated in this connection that the case of Smt. Promila Lewis cannot be decided without the approval of the then Prime Minister. Smt. Lewis was responsible for organizing an agitation for minimum wages to the farm labourers working in the farmland of Smt. Indira Gandhi and Shri B.K.Nehru in Mehrauli area when Shri Nain Chawla was the ADM of that area. Shri Navin Chawla had told him that the PM desired that Smt. Lewis was not to be released. He himself had also got it confirmed from the PM.
These are only extracts. Mr. Chawla, then a junior officer (with only six years in the IAS) was guilty of such and other misconducts. And he escaped penal action against him on the basis of the Shah Commission’s report only because the Janata Party collapsed under its own weight and the Government fell in July 1979. Th Shah Commission, appointed under Section 3 of the Commission for Enquiry Act, 1952, had completed its work and submitted its report even before the collapse. But then, Indira Gandhi, on her return as Prime Minister in January 1980 lost no time in dumping the three volumes of the report and Navin Chawla was soon rehabilitated as Deputy Secretary, Ministry of Labour. He was thus able to climb the ladder to become Information and Broadcasting Secretary in May 2004 and picked up to become Election Commissioner in May 2005 by Dr. Manmohan Singh’s Cabinet.
Justice J.C.Shah was not a partisan political activist. He was Chief Justice of the Supreme Court (1970-71) and headed the Commission of Enquiry that went into the Emergency excesses only in that capacity. And in his report, Justice Shah took pains to name three officers: P.S.Bhinder, K.S.Bajwa and Navin Chawla based on the evidence that was mustered before him during the enquiry. The report said:
``S/Shri P.S.Bhinder, K.S.Bajwa and Navin Chawla exercised enormous powers during the emergency because they had easy access to the then Prime Minister’s house. Their approach to the problems of the period relating to the citizens was authoritarian and callous. They grossly misused their position and abused their powers in cynical disregard of the welfare of the citizens, and in the process rendered themselves unfit to hold any public office which demands an attitude of fairplay and consideration for others. In their relish for power, they completely subverted the normal channels of command and administrative procedures.’’
Imagine Chawla as the Chief Election Commissioner!