Move by BJP to subvert the election commission is dangerous for democracy

[The current chief election commissioner Gopalaswami, was once Advani's Home Secretary before becoming an Election Commissioner ]

http://www.hindu.com/2009/02/02/stories/2009020254821000.htm

The Hindu, February 2, 2009

Constitutional experts criticise CEC’s decision

New Delhi: Noted constitutional experts Shanti Bhushan and K.K. Venugopal have criticised Chief Election Commissioner N. Gopalaswami’s decision to suo motu recommend the removal of Navin Chawla as Election Commissioner.

Mr. Bhushan, a former Law Minister, said Mr. Gopalaswami should have written to the government long ago and not on the eve of the general election. “At this stage to create a crisis of this kind is wholly improper and the Chief Election Commissioner ought to resign.”

Mr. Venugopal said that “such a recommendation at the fag end of his tenure is not permissible.”

Further, the decision taken by the CEC went against the 1995 verdict of the Supreme Court in the T.N. Seshan case. In that case, the court had held that “if the power of the Election Commission was to be exercisable by the CEC as per his whims and caprice, the CEC himself would become an instrument of aggression and would destroy the independence of the Election Commission.”

On the CEC’s power on the removal issue, Mr. Venugopal said, “this power cannot be exercised suo motu by the CEC without the reference being made to him for such removal.” — PTI

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The Hindu
February 3, 2009

Gopalaswami’s claims on timing of missive are seriously misleading

N. Ram

Documentary record shows he hounded Navin Chawla and made light of constitutional considerations

Chief Election Commissioner N. Gopalaswami has been widely criticised, among others by top constitutional lawyers Fali Nariman, Shanti Bhushan, and K.K. Venugopal, for the timing of his missive to the President just three months ahead of the 15th general election and three months ahead of his own retirement as CEC. In response, Mr. Gopalaswami has gone on record essentially blaming Election Commissioner Navin Chawla for the timing, claiming that he sent his ‘final reply’ to the allegations made in the BJP’s petition only on December 10.

A careful, item-by-item verification by The Hindu of the CEC’s claims on what happened within the Election Commission between January 30, 2008 and January 12, 2009 reveals that they are seriously misleading.

On January 30, 2008, Mr. Gopalaswami received in his chambers a Bharatiya Janata Party delegation led by Arun Jaitley. It submitted a petition making various allegations against Navin Chawla and demanding his removal as Election Commissioner. On January 12, 2009, the CEC sent his report to the President ‘recommending’ that Mr. Chawla be removed from office under Article 324(5) of the Constitution.

First of all, 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. He is now quoted in the press as attributing the delay on his part to a highly subjective factor, the differences he had developed with Mr. Chawla over the timing of the Karnataka election. (“I put the petition on hold till the Karnataka election was over, lest it be misunderstood.”)

Secondly, the timing is to be explained by the CEC’s overbearing insistence, in tandem with the BJP’s strident stance, that he had the power under Article 324 (5) of the Constitution to conduct an inquiry against an Election Commissioner, and make a suo motu recommendation on his removal. This usurpation of authority flew in the face of the Supreme Court’s judgment in T.N. Seshan, Chief Election Commissioner v. Union of India (1995). It was a complete reversal of the stand taken in June 2006 by Mr. Gopalaswami’s predecessor, B. B. Tandon, and by the Election Commission itself in the Supreme Court. It also went against the legal opinion given to the Election Commission, on April 16, 2006, by Ashok H. Desai, senior advocate and former Attorney-General for India. What constitutional or legal sanction other than the BJP’s averments Mr. Gopalaswami had for his dogmatic claim of suo motu authority over a fellow member of the Election Commission remains to be inquired into and explained.

The documentary record shows that he relentlessly hounded an Election Commissioner, who was supposed to be his equal, after demanding his “comments on the issues raised” in the BJP’s petition so that he could “consider the matter for further appropriate action.” He peremptorily ruled out challenges to his locus standi and jurisdiction. He insisted, in his written communication with Mr. Chawla, that the matter was solely “between the Chief Election Commissioner and the Election Commissioner” and had “nothing to do with the Central Government,” the appointing authority for the CEC as well as ECs.

The CEC rejected the constitutional contentions in Mr. Chawla’s elaborate reply of September 12 and demanded a response on “the merits of the petition” as early as possible. Even Law Secretary T.K. Viswanathan’s vitally important letter of clarification, dated November 7, 2008, which Mr. Chawla forwarded to Mr. Gopalaswami, was dismissed as irrelevant in the cat and mouse game the CEC seemed to be playing.

Mr. Chawla’s ‘final reply’ of December 10 was only a reiteration of the important constitutional points he made in his reply of September 12 plus a rejection of the BJP’s allegations as “motivated and entirely baseless.”

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The Hindu
February 03, 2009

How Chief Election Commissioner pursued BJP allegations

N. Ram

The factual record shows that on July 21, 2008 — more than six months after he received a petition from a BJP delegation in his chambers — Chief Election Commissioner N. Gopalaswami forwarded the allegations to Election Commissioner Navin Chawla in an officious letter. He asked him to offer his comments on “the issues raised in the said petition at your earlier convenience to enable me to consider the matter for further appropriate action.” Ten days later, Mr. Chawla courteously acknowledged the CEC’s July 21, 2008 missive, saying that he would revert to him.

The CEC did not have to wait for long because on September 12, 2008 the EC sent his detailed and constitutionally substantive reply. In this, he questioned the locus standi of the CEC in this matter and called attention to “the variance in the extant constitutional position qua Article 324(5) and your interpretation of the same.” He said that by way of abundant caution he had written to the Union Law Secretary, T.K. Viswanathan, to seek information on whether the President or the government had been apprised of the representation in the first place and also to ascertain the stand of the Central government. Pointing out that he had set out his response to the allegations in a detailed June 2006 affidavit in the Supreme Court, the Election Commissioner backed up his stand by enclosing along with his affidavit the affidavits of former CEC B.B. Tandon and the Election Commission’s Secretary, K.F. Wilfred, and also Ashok Desai’s legal opinion. Mr. Chawla added that his response was without prejudice and should not be considered to be his reply on “the merits” of the petition signed by Mr. Advani and others.

In a letter dated September 17, the CEC peremptorily rejected the constitutional contentions in Mr. Chawla’s elaborate reply and demanded a response on “the merits of the petition” as early as possible.

Even Law Secretary T.K. Viswanathan’s letter of clarification, dated November 7, 2008, which Mr. Chawla forwarded to Mr. Gopalaswami was given short shrift. In his letter to Mr. Chawla, the Law Secretary confirmed that a copy of the petition signed by Mr. Advani and other MPs had not been forwarded either by the petitioners or by the CEC to the President or the Ministry of Law and Justice. Neither had the Central government been consulted by the CEC before seeking Mr. Chawla’s reply to the allegations. Most importantly, the letter put on record the government’s considered view that “the removal of an Election Commissioner under the second proviso to Article 324(5) of the Constitution cannot be initiated by the Chief Election Commissioner except upon a reference or with the concurrence of the Central Government.”

Treating all this as irrelevant, the CEC sent two more reminders to Mr. Chawla asking for a reply on “the merits of the petition” and even prescribing deadlines. Finally, on December 10, Mr. Chawla gave his reply, questioning the CEC’s locus standi in detail and rejecting the allegations as baseless, devoid of evidence or “any material to even warrant a suggestion of impropriety on my part as an Election Commissioner,” and made for “extraneous considerations.”

The wonder is that as this unseemly drama was progressing and the internal blood-letting getting worse, the three-member Election Commission managed to conduct Assembly elections in six States. For five States, election announcements were made on October 14 and the poll completed on December 5. For Jammu & Kashmir, the announcement was made on October 19 and the poll completed on December 28.

Soon after this, Mr. Gopalaswami, who will retire on April 20, fired what he thought was his Brahmastra. It seems to have backfired.