NEW DELHI: The timing of CEC N Gopalaswami's recommendation for the removal of his likely successor Navin Chawla is no doubt suspicious as it has
been made barely three months before the general election and his own retirement. But the legal controversy over whether Gopalaswami was empowered to propose an EC's removal without any reference from the government seems misplaced.
For, all that Article 324(5) of the Constitution stipulates is that the EC "shall not be removed from office except on the recommendation of the CEC." There is no stipulation that the CEC's recommendation can come only upon a reference made by the government. If anything, the provision is meant to insulate the EC from governmental pressure by placing him, as the Supreme Court put it in a landmark verdict in 1995, "under the protective umbrella of an independent CEC."
This flies in the face of Congress spokesman Abhishek Singhvi's attempt on Saturday to undermine the legality of Gopalaswami's recommendation to the President to remove Chawla. "There are several intricate issues of law involved including the very jurisdiction of the CEC to exercise such powers on a colleague," Singhvi said. Not only is there no question about the CEC's jurisdiction over his colleague, the government may also be bound by his recommendation, going by SC's explanation of why the Constitution discriminates between the CEC and EC while providing safeguards to preserve their independence.
According to the Constitution, while the EC can be removed on the CEC's recommendation, the CEC himself cannot be touched unless he is impeached by Parliament like a Supreme Court judge. In another glaring instance of discrimination, the Constitution ignores the ECs while stipulating that the CEC's service conditions "shall not be varied to his disadvantage after his appointment."
In its 1991 judgment in S S Dhanoa vs Union of India, SC said that CEC had to be provided a higher degree of protection because he alone was intended by the founding fathers to be "a permanent incumbent" of the Election Commission. It said that "the same type of irremovability" could not be bestowed on the ECs because the Constitution gives the discretion to the government to increase or reduce their number depending on the workload.
"Having insulated the CEC from external political or executive pressure, confidence was reposed in this independent functionary to safeguard the independence of his ECs by enjoining that they cannot be removed except on the recommendation of the CEC," SC declared in 1991.
This interpretation was broadly upheld in 1995 by a larger bench even as it rejected the attempt of the then CEC T N Seshan to make out that the ECs were either his subordinates or meant only to advise him. Though it otherwise upheld the Narasimha Rao government's bid to clip Seshan's wings, the 1995 verdict reiterated, "Since the other ECs were not intended to be permanent appointees they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC."
The implication of these judgments is that the CEC alone can be trusted to take a call on whether a certain EC is being independent enough from the government