Navin Chawla, CEC and suo motu actions

Two thought-provoking articles and a few links on the on-going saga at the Election Commission.

First some excerpts from War clouds over the Election Commission by Radha Rajan

…The Chief Election Commissioner, by asking the President to remove Navin Chawla as Election Commissioner has stuck his neck out for the health of this country’s democracy…People who care about the country and its high democratic institutions should not permit the CEC’s courage in putting a spanner in Congress and Chawla’s works to become futile and fruitless. This is the time to stand up and break the polite silence over the growing trend to defile and corrupt high institutions where an undeserving candidate’s loyalty to this family and the individual tilts the balance at the time of appointment.

“Those who don’t appoint the Election Commissioner can’t remove him”, said Kapil Sibal and a truer word hath not been said. There is no UPA, much less a Congress; there is only Sonia Gandhi. She hand-picked the Prime Minister, the NSA, the incumbents to two of the country’s most sensitive constitutional posts including the Rashtrapati Bhavan and the two Election Commissioners who have triggered the crisis by planting a constitutional IED inside Nirvachan Sadan. Each and every one of them personally, or someone in the family is a Sonia Gandhi (family) loyalist/close friend. If anyone can remove Navin Chawla, only Sonia Gandhi can.

Constitutional experts agree that the last call on the issue can be taken only by the President of India. Not that the President of India can act independently; he/she can ask the CEC to remove an Election Commissioner only if the Cabinet so advises the President. This brings us back to the core theme of this column – when an extra-constitutional authority appoints undeserving candidates to high constitutional positions for reasons other than merit, then no person so appointed and who owes his/her ascent to Sonia Gandhi is going to make any move to remove another Sonia Gandhi loyalist. That is the truth about the state of this country’s democracy. But will she?

…If we cut out the verbiage casting aspersions on Gopalswamy Iyengar’s character and professional integrity and ignore the hot air ranting of our experts and mandarins, the core submissions of the vendors of politics of minority-ism, including the Law Minister HL Bharadwaj are:

• The ‘C’ in the CEC is only ornamental and not substantive
• The CEC cannot recommend, suo motu or otherwise, the removal of any other EC
• Navin Chawla will succeed Gopalswamy Iyengar as CEC

Fali Nariman, the jurist who our vendors love to quote on just such an occasion, on the other hand, makes the customary genuflection to his political ideology but nevertheless makes the following core submissions:

• The issue falls in a constitutional “grey area” because the constitution is not clear about whether the CEC has suo motu powers to recommend the removal of an Election Commissioner
• But to his mind (which is not relevant at all) the CEC has no suo motu power
• The Supreme Court had left the issue wide open two years ago when the issue first came up before it
• Navin Chawla has no ‘right’ to automatically ascend to post of CEC. That the senior-most person has been promoted to the post is only government practice and not a matter of law or Constitution

…Noted political commentator BS Raghavan… has made startling revelations about Navin Chawla’s extremely dubious antecedents. Excerpts from Shri Raghavan’s damning disclosure about Navin Chawla’s disreputable past deserve to be quoted at length:

“I can boldly assert that I am the only living former civil servant who, as a Member-Secretary of the high power Committee to advise follow-up action on the report of the Emergency Excesses Inquiry Commission chaired by the former Supreme Court Chief Justice, J.C.Shah, had dealt with every aspect of the Commission’s indictment of Mr. Navin Chawla, who is currently in the news for the wrong reasons.

…According to Justice Shah, Mr. Chawla, along with his cohorts in the police at the time, “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 fair play and consideration for others…

…The L. P. Singh Committee had no doubt that the shocking material contained in the Shah Commission’s report indeed made Mr. Chawla unfit to hold any public office and that he deserved to be summarily dismissed from service without any further inquiry or proceedings, invoking the special powers under provisos (b) and (c) of Article 311 of the Constitution. This precisely was the fate Mr. Chawla would have met with but for the fall of the Janata Government and return of Indira Gandhi to power resulting in the restoration to coveted posts with a vengeance of all those indicted by Justice Shah.

…A man who has been indicted for gross human rights abuse during Emergency…and a man who has been publicly held unfit to hold any public office is elevated by Sonia Gandhi as Election Commisioner with a view to delivering him at the end of the assembly line as CEC at the time of the next Lok Sabha elections. This and only this is the issue.

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Next some excerpts from Election Commission: Sonia & Left in the dock by Sandhya Jain:

…As if to underline the extent to which constitutional bodies have been politicized by the Congress Party, the Assam State Election Commissioner Chandra Kanta Sarma resigned on 31 January 2009, and is now seeking a Congress ticket from Mangaldoi parliamentary constituency! Mr. Sarma was admitted to the Congress on 1 February, and submitted his request for the party ticket the same day.

Former Chief Election Commissioner Manohar Singh Gill is currently serving as a Minister of State in the UPA Government.

…The current crisis broke into the public domain immediately after Election Commissioner S.Y. Qureshi (whose religious affiliations are self-evident) declared on an official trip to London that the Lok Sabha elections would be held between 8 April and 15 May 2009. The UPA took instant advantage of the information to sharply reduce the prices of petrol, diesel and cooking gas; more populist announcements are reportedly on the anvil, which Congress is keen to announce before the model code of conduct becomes operative.

…It is pertinent that in March 2005, just two months before his appointment as Election Commissioner, Mr. Chawla was bestowed the Mazzini Award by the Italian government. Ms. Sonia Gandhi, as is well-known, is an Italian-born Roman Catholic. Her son and Amethi MP, Rahul Gandhi, has studiously refused to answer questions regarding the nature of his citizenship (given the Roman law) and whether he also holds an Italian passport, a situation untenable in Indian law.

While Mr. Chawla’s appointment naturally created misgivings that he had a pro-Congress leaning, it became unacceptable once the media exposed that he had received undue favours from the Ashok Gehlot regime in Rajasthan, and that Congress MPs had made huge donations from MPLAD funds to a private trust owned by him and his wife.

It was in this backdrop that over 200 MPs of the NDA signed a memorandum requesting President Kalam to remove Mr. Chawla from office. Later, BJP leader Jaswant Singh filed a petition in the Supreme Court in May 2006, which it withdrew when CEC Gopalaswami filed an affidavit saying he had the power to remove any Member for substantial reasons. BJP then forwarded its petition to the CEC. The CEC’s power under Article 324(5) was affirmed by the Supreme Court in T.N. Seshan vs. Union of India (1995).

In his letter to President Pratibha Patil citing 12 instances of partisan behaviour by Mr. Chawla, one of the key issues pertains to the Order of the Leopold Award conferred by the Belgium Monarchy upon Ms. Sonia Gandhi. A controversy over the citation led to an opposition demand for disqualification of the Congress president, and Mr. Chawla roped in the Ministry of External Affairs to bail her out.

Sources say that the Commission deliberated for over five months, during which period the PM’s principal secretary T.K.A. Nair visited the Commission to plead that there was no case against Ms. Gandhi and that the PM had already examined the matter. Though the Commission finally decided to issue notice to Ms. Gandhi, Mr. S.Y. Qureshi reportedly changed his mind and felt the notice should not be served. Ms. Gandhi has since replied to the notice, but Mr. Chawla has failed to furnish his comments and hence the Commission has not finalized its views on the matter.

Precisely these stonewalling tricks were deployed by Mr. Chawla in the matter of the CEC’s show-cause notice on the BJP petition. He sought the opinion of the Union Law Ministry, which has now publicly taken the stand that the CEC does not have the authority to take suo motu action on such petitions. Yesterday (2 February), Law Minister Hansraj Bharadwaj went a step ahead and declared Mr. Chawla as CEC-designate (Mr. Gopalaswami retires on 20 April 2009).

…Notwithstanding the desirability of his removal, it is evident from the brazen approach of the Congress and UPA government that Mr. Chawla is not only going to stay for the duration of the Lok Sabha elections, but going to be elevated as Chief Election Commissioner thereafter. Commissioner Qureshi has already proved convenient to the UPA government.

In these circumstances, a parliamentary election conducted by these two officers will lack public confidence and credibility. Hence it would be in the fitness of things if all political parties decide to complete the election process by 20 April 2009, when all three Commissioners are in office. As the current Parliament’s term ends in April, this would be appropriate….

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What do you think about all this?

Should ECs be barred from joining a political party after retirement? Should judges be barred too?

Should ECs and judges be routinely re-nominated when the government changes?

Are there other measures that can be thought of to ensure non-partisan conduct by Election Commissioners, Judges and others (including senior bureaucrats)?

and finally, do you think this issue is likely to have any impact on the forthcoming elections?

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P.S. Also read Sandeep on Navin Chawla: Say No

Bonus: Navin Chawla: An authority by himself  and He lives by the give-nothing-take-nothing principle