Election system ain't broke, no point in (media) trying to fix it

Tuesday, February 3, 2009

Freedom of the press does not mean that the editorial board can report whatever they want to. Media has the right to report the 'news' and let people know the current position of that 'news'. The moment they start reporting their 'opinion', the very foundation of press freedom is shaken. Right of media lies in right of people to be informed about the truth. The way recent controversy, over Chief Election Commissioner's 'recommendation' for the removal of Election Commissioner Navin Chawla, is being reported reflects media's apathy towards analyzing constitutional provisions and the truth behind CEC's recommendations.

Media must not prevaricate the truth by taking biased stands. It must not create the confusion and panic by projecting it's biased views and opinions. Blame it on unprecedented competition in the media (print as well as electronic). I honestly believe that attitude of the media can be changed neither by stricter laws nor by self regulation but only by commercial failure of the 'news market'. Media must treat the ongoing election commission issue as learning curve raised due to 'constitutional confusion'. Office of the Election Commission is truly sacred in democracy and it should never be tampered with.

There are three important questions we need to answer before deciding whether CEC's recommendation can potentially tamper the integrity of election commission and threaten it's functioning.
  1. Is constitution clear about removal of Election Commissioner?
  2. Does Mr. Gopalaswamy has all the necessary evidences to show that Mr. Navin Chawla is 'not clean'?
  3. Can the standards, procedures established in EC and the legacy left behind by likes of T.N.Seshan allow any threats to EC's functioning?

1. Is constitution clear about removal of Election Commissioner?
"The Constitutional provisions governing the appointment and removal of election commissioners were drafted at a time when only the Chief Election Commissioner was given a full-time appointment and the election commissioners were appointed on a short-term basis, only during election time, when full-time election commissioners were appointed, the government was informed of the discrepancy and that it must be corrected with suitable amendments" says ex CEC T S Krishnamurthy. Such amendments to the constitution were not made so far.

Article 324(5) of the constitution says, "Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner (CEC)." In case of Chief Election Commissioner, impeachment (or removal) is explicitly mentioned in Article 324 of the constitution. But in case of other Election Commissioner(EC), constitution is not clear. In the legal circle it is well known that, if the procedure for removal is not explicitly mentioned in the constitution, then appointing authority is solely responsible for removal too. Now, the President of India is appointing authority for EC, only he can remove the EC. In order to provide a check on the executive’s powers and safeguard the independence of the Election Commission, clause (5) was added in Article 324 making CEC's recommendation as a necessary evil. Now, whether CEC has the suo moto (on his own) power to recommend EC's removal is not clear. CEC, Mr. Gopalaswamy thinks he has the suo moto power, while the government thinks he does not.

Ex CEC "Mr. B.B. Tandon and the Election Commission took the provisions to mean that since the appointing authority is the President, the CEC comes into the picture only when a proposal for the removal of an Election Commissioner comes before him from the President for his recommendation." What does Supreme Court (SC) think? In T.N. Seshan, Chief Election Commissioner v Union of India (1995) SC held that, "recommendation for removal must be based on intelligible and cogent considerations which would have a relation to the efficient functioning of the Election Commission." It also opined that if the powers of removal of EC (and Regional Commissioners) is vested with CEC, it "would destroy the independence of the Election Commissioners and the Regional Commissioners if they are required to function under the threat of the CEC recommending their removal." Thus, it is clear that Supreme Court too did not take any position on suo moto power of CEC. It's opinion is equivocal.

2. Does Mr. Gopalaswamy has all the necessary evidences to show that Mr. Navin Chawla is 'not clean'?
While talking about "evidential value" of his recommendation, Mr. Gopalaswamy said, "I have no regrets. One should not have any regrets in speaking the truth. My evidence is legally strong and morally stronger". Gopalaswami's letter to the President is 93 pages long, its annexures run through some 500 pages and also include a 150-page response from Chawla to the charges raised by members of Parliament against him. It must be noted here that, the report is not yet made public and media obviously has not read the report before coming to conclusion about validity of CEC recommendations. Even well respected editor of The Hindu, Mr. N Ram, erred by taking pro Congress position (Read More here). Here are some well known facts about Mr. Navin Chawla.
  • At the time of Indian Emergency (1975 - 77) he was secretary to the Lieutenant Governor of Delhi. Shah Commission which inquired into the excesses during the Emergency, indicted Mr Chawla for having been 'authoritarian and callous' and for gross misuse of power "in cynical disregard of the welfare of citizens". Further, it declared that he was "unfit to hold any public office which demands an attitude of fair play and consideration for others"
  • Mr. Navin Chawla and his wife Rupika Chawla ran the Jaipur-based Lala Chaman Lal Education Trust which had secured MPLADS funds from Congress MPs — A.A. Khan, R.P. Goenka, Ambika Soni, Dr Karan Singh and Mr A.R. Kidwai. Exclusive: Chawla accepted funds for private trusts. The trust was allotted six acres of land by the Congress government in Rajasthan when Mr Ashok Gehlot was the Chief Minister.
  • Mr. Navin Chawla's wife Ms. Rupika Chawla's friendship with Madam (Sonia) Gandhi spans over 30 years! Whether that has any impact on Mr. Navin Chawla (and his alleged loyalty to Congress) is open to debate. Read more here.
  • CEC has reported that Mr. Chawla's loo breaks in between the meetings led to Congress leaders' phone calls. Read More here.
  • Mr.Gopalaswamy has said that, "irrespective of whether Chawla consents to a decision or finds himself singled out by a majority of Gopalaswami and S Y Quraishi, the other Election Commissioner, he appears to be in the habit of conveying all the minutes of their internal meetings to the Congress leadership."
  • More will surely come out when CEC's report is made public.

Now, it's obvious that CEC's report has some merit in it and one cannot decide whether CEC's report was against the functioning of election commission without going through his 800+ page detailed report.

I honestly feel that, though Mr.Navin Chawla is not yet proved guilty, the allegations surely question the integrity of his position in the election commission. As the old saying goes, there can't be smoke without fire. Mr. Gopalaswamy's recommendation throw light on politicization of election commission. Hope Supreme Court can take a clear view and resolve the confusion. I am guessing that Supreme Court will uphold Mr. Gopalaswamy's move if the evidence provided by him are sufficient to prove Mr. Chawla's loyalty to Congress.

3. Can the standards, procedures established in EC and the legacy left behind by likes of T.N.Seshan allow any threats to EC's functioning?
"The Indian elections were conducted by over five million civilian employees, two million policemen keeping guard and everyone of them has acquitted himself with a tremendous sense of duty that not one whisper of doubt on the freedom of the election process has been uttered [T N Seshan]".  We have moved from ballot boxes to Electronic Voting Machines, We have learned to suppress the goons and prevent the violence (recent J & K election is the testimony to the effective functioning of Election Commission), We have gone to the extent of banning ostentatious campaign displays and noisy rallies and required candidates to clean up walls and buildings defaced with their slogans. We have enforced spending limits and made the candidates to submit full accounts of their expenses for scrutiny by independent government inspectors. Our standards and procedures of election are of highest democratic standards in the world. Despite all this, of course, "there were attempts to damage the system but every such attempt has been met and successfully overcome by the will of the people". Thus our standards and procedures established in the functioning of election commission simply does not allow blatant misuse of the very process of election. More over voters of our generation (at least majority of them) are knowledgeable enough to decide who is worth their votes.

Thus it's conspicuous that, there is no reason whatsoever why we should be worried because of CEC's recommendation for removal of Mr. Navin Chawla. "Much graver than Chawla’s alleged bias is the appointment of M S Gill, former CEC, to a ministerial post. But nobody accused Mr. Gill of unfair bias when he was CEC. Indeed, T N Seshan, for long seen as part of the Gandhi camp, proved to be the most fearlessly independent CEC ever. The system ain’t broke, so don’t try to fix it [ET]."

Update - 12/02/09: CEC Mr. N. Gopalaswamy wrote a letter to the editor in chief of The Hindu Mr. N. Ram defending his suo motu power. (In his reply) N. Ram goes on to explain complicated judicial interpretations to prove that CEC wasn't right in his suo motu act. The bottom line is, one can quote the laws to prove some one guilty, but the question here is of natural justice which is above the normal laws of the land. If Mr. Chawla is proved guilty based on evidences given by Mr. Gopalaswamy, then Mr. Ram's case is justifiable only on techinical (legal) grounds, Mr Chawla (if proved guilty) must be punished for his alleged inclination towards Congress.

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This work by Manjunath Singe is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 India License. The views and opinions expressed in this work are strictly those of the author and do not represent his employer's views in anyway.