» A forgotten unconstitutionality: Chawla takes over as CEC

Come tomorrow and India will have a new Chief Election Commisioner (CEC), Mr. Naveen Chawla. He takes over this high office at a time when the elections to the Lok Sabha are underway and after having had a few months of controvertial existence; courtesy an adverse recommendation by the outgoing CEC Mr. N. Gopalaswami. This recommendation threw up a number of questions, whether valid or otherwise. Those that drew the maximum attention were that of the timing and the suo moto nature of the recommendation.

As for the timing, Mr. N. Ram of The Hindu took the lead and thence received a sufficiently elaborate factual response from Mr. N. Gopalaswami himself; which has made any talk of the timing incredulous. A fellow blogger at INI too had analysed the credibility of this allegation. As for the argument against a suo moto recommendation, the same is a double bind of sorts for the BJP. When the BJP approached the then President Dr. Kalam, the Government took it upon itself (rather than the President), not to forward the matter to the CEC for its recommendation. And when the BJP approached the CEC, it cried fowl that the CEC had dealt with the BJP’s petition. Contrary to the generous references that it has drawn in the media, the T.N.Seshan case of 1995, did not deal with the sequence of exercise of, the power to recommend, by the CEC.

Today, the controversy seems to have been buried and forgotten, well in time to usher in the new CEC. Even the outgoing CEC does not want to talk about it and believes that the President has had the final word on the issue and hence it is closed.

This brings us back to an issue that I thought was of most consequence, that of the next step after the recommendation was made. This issue seems to have been lost in the tangential rhetoric that followed the recommendation by Mr. Gopalaswami. The double bind that the Union Government has engineered is based on the assumption that the Cabinet is the final arbiter on the matter. This assumption was, not surprisingly, echoed by the Union Law Minister, Mr. H.R. Bharadwaj, when he said while speaking to the press that “I have to see what is new in the matter” and “when a decision is taken, we will inform you”.

This begs the question as to whether Mr. Bharadwaj or anyone in the Union Council of Ministers had any business at all to consider the matter.

The answer lies in dispelling a largely held misconception that the President, is a titular head for all purposes whatsoever viz a viz the Council of Ministers . This misconception has two main basis; first, our constitution requires that the President must have a Council of Ministers to aid and advice him at all times, hence the necessity of an acting Prime Minister; second, Art. 74 of the constitution which provides that there shall be council of ministers to aid and advice the President only affords the President the leeway to request his Council to reconsider their decision once; but not any further.

In reality, one of the many subtleties of the functioning of India’s unique constitution, are the instances when the President cannot possibly act on the aid and advice of his Council, lest it lead to absurd results. This room of discretion afforded to the President has been long recognized through many decisions of the Supreme Court (SC).

First in 1964, while deciding on the issue of the age of a Calcutta High Court judge, to be determined by the President under the constitution; the SC categorically held that the President himself should decide, uninfluenced by the Executive, i. e., by the Minister in charge of the portfolio dealing with Justice. Again in 1971, when the same matter revisited the court, it went to the extent of clarifying that even for all communications in the matter, the President’s Secretariat should be the channel and that “there must be no interposition of any other body or authority”.
In 1965, when deciding on the power of a Governor to disqualify a member of the legislative assembly upon the opinion of the Election Commission; the SC clarified that the Governor “is not required to consult his Council of Ministers”.
In 1974, the SC, on a general note conceded that that though the President and Governor, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, there do exist few well known exceptional situations. As illustrative instances, it cited the choice of Prime Minister and the dismissal of a Government which has lost its majority in the House but refuses to quit office.
In 1982, the SC had to decide on the sanction for prosecution of Mr. A.R. Antuley, having been the Chief Minister, by the Governor. It held that in such a situation, the Governor must “as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.”
More recently in 2004, the SC again while dealing with the sanction for prosecution of a Minister by the Governor, explained that “there may be situations where by reason of peril to democracy or democratic principles an action may be compelled which from its nature is not amendable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.” These words to my mind best describe the situation at hand; the allegation against Mr. Chawla being that of bias towards the largest component of the Union Cabinet, the Congress Party.

Lastly, the one judgment that has been made the cornerstone of all criticisms of the CEC’s recommendation is that of T.N. Seshan (1995) and in particular a line therein where the court observed that the CEC in recommending removal of a commissioner should not do so “as per his whim and caprice”. These words of caution from the SC do not take away from the fact that Mr. Bharadwaj or his colleagues in the Cabinet have no business to judge the recommendation. That, it is the sole preserve of the President, is beyond doubt in view of the catena of decisions on the discretionary scope of the President’s functions.

In Mr. Chawla’s case, the President, ought to have been guided solely by the broad basis stated in Seshan’s case, which is that “the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission”. But more importantly, as was observed by the court in the 1971 case of the High Court judge’s age, the President’s judgment ought not to be coloured by the advice or representation made by the executive. Unfortunately, on March 1, when the President’s office announced its decision it said “The President, after careful consideration of the report of the CEC, the government’s recommendation, constitutional provisions and the Supreme Court judgement, arrived at a considered opinion, and has accepted the recommendation of the government.” The “Government’s recommendation” having been factored in, should itself cause the decision to be rendered unconstituional in light of the aforesaid line of decisions of the SC.

From tomorrow, Mr. Chawla’s removal would require the heruclean task of impeachment. Moreoever, even before anything could be done, he would have overseen a large part of the present elections as the CEC.

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[...] Lex added an interesting post on A forgotten unconstitutionality: Chawla takes over as CECHere’s a small excerpt Come tomorrow and India will have a new Chief Election Commisioner (CEC), Mr. Naveen Chawla. He takes over this high office at a time when the elections to the Lok Sabha are underway and after having had a few months of controvertial existence; courtesy an adverse recommendation by the outgoing CEC Mr. N. Gopalaswami. This recommendation threw up a number of questions, whether valid or otherwise. Those that drew the maximum attention were that of the timing and the suo moto nature of the r [...]

1 Topics about Last-words | A forgotten unconstitutionality: Chawla takes over as CEC April 19, 2009 3:22 pm

[...] Lex placed an observative post today on A forgotten unconstitutionality: Chawla takes over as CECHere’s a quick excerpt Come tomorrow and India will have a new Chief Election Commisioner (CEC), Mr. Naveen Chawla. He takes over this high office at a time when the elections to the Lok Sabha are underway and after having had a few months of controvertial existence; courtesy an adverse recommendation by the outgoing CEC Mr. N. Gopalaswami. This recommendation threw up a number of questions, whether valid or otherwise. Those that drew the maximum attention were that of the timing and the suo moto nature of the r [...]

2 Topics about Indian-art | A forgotten unconstitutionality: Chawla takes over as CEC April 19, 2009 5:32 pm

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A forgotten unconstitutionality: Chawla takes over as CEC

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