“When facts are against the litigant, argue the law” — this is the lawyers’ strategy in courts. Those who fault the Chief Election Commissioner N Gopalaswami’s recommendation for removing Navin Chawla, one of the two election commissioners, seem to adopt this strategy. The disturbing facts about Navin Chawla should be captured first before seeing if Gopalaswami is right or wrong. Facts speak louder than any editorialized news in defence of Chawla and against Gopalaswami. One generation of 18-year-old voters was not even born when the Chawla story started; an earlier generation would have been at playschools and KG classrooms then.
Chawla is “unfit to hold any public office which demands an attitude of fair play and consideration for others”.
This is not Gopalaswami , but the Justice Shah Commission thirty years back, in 1979. The Shah Commission had inquired into the excesses committed by the executive during the Emergency in 1975-77. It indicted Chawla, then Secretary to the Lieutenant Governor of Delhi, for “authoritarian and callous” conduct and gross misuse of power “in cynical disregard of the welfare of citizens”. Yet for conducting national elections the UPA government shockingly chose Navin Chawla, who was judicially branded unfit to hold “any office that demands fair play and consideration”.
But could Chawla not have changed for the better? Three decades is too long a time for any person to not introspect and change. But this rule did not seem to have worked for Chawla. In his case the evidence testifies to his changelessness over decades. See what Chawla does two decades after Justice Shah indicted him. He solicits and gets donations and largesse for his family-run trust of which he and his wife Rupika are trustees. From who? The very politicians he is now constitutionally bound to oversee and discipline. Not surprisingly, all of them belong to a single party, the Congress. Chawla got funds allocated by Congress MPs from their MPLAD Scheme. The large hearted MPs were: A A Khan, R P Goenka, Ambika Soni, Karan Singh and A R Kidwai. Chawla’s trust was also allotted six acres of land from the Congress government in Rajasthan previously headed by Ashok Gehlot. Obviously Chawla has not changed much in 25 years.
Was it his changelessness that finally got him into the Election Commission? When Chawla’s links with the Congress Party came to light, 204 MPs of the Opposition NDA rightly applied to the President of India, A P J Abdul Kalam, asking for Chawla’s removal from the Commission.
Later, in May 2006, the Leader of Opposition in the Rajya Sabha moved the Supreme Court for Chawla’s removal. In that case, CEC Gopalaswami filed an affidavit affirming that he had the authority to remove any member of the Election Commission for good reasons. This led to the withdrawal of the petition.
Gopalaswami did not claim any new right. The Supreme Court had expressly vested this right in the CEC by its judgement in the case of T N Seshan vs Union of India [reported in (1995) 4 SCC 611].
The court ruled that “the CEC is a permanent incumbent” and “to preserve and safeguard his independence, has to be treated differently” from other members of the EC.
The CEC cannot be removed except by impeachment; the other members are removable without this process. The power to remove other members needs to be retained, added the court. So, the view that the EC “is constitutional body of coequals with equal voting power and that the CEC is the first among equals with certain leadership and administrative responsibilities” is totally wrong. But who can exercise the power to remove? This is what the court ruled: “having safeguarded the CEC from external and executive pressure” confidence was reposed in CEC “to safeguard the independence” of his Election Commissioners by enjoining that they cannot be removed except on his recommendation.
The court thus settled that the CEC, here Gopalaswami, alone has the power to recommend the removal of Chawla; the political government has no authority in this. Constitutionally the political authority cannot remove an EC except on CEC’s recommendation.
Consequently, it cannot refuse to remove if the CEC recommends so. Once the CEC has recommended the removal of Chawla, the government has no power to refuse to comply. Gopalaswami has clearly and strictly gone by the rule book.
QED: In retrospect, it is Chawla’s appointment to the EC, and his continuance in EC, that is wrong. Not his removal recommended by Gopalaswami. The CEC must be commended for his courage, not faulted on wrong reasoning.