Why CEC’s recommendation with regard to Navin Chawla must be accepted by Government

The current controversy surrounding Election Commissioner Shri Navin Chawla reminds me of a conversation I had had with Benazir Bhutto when she visited Delhi during the NDA regime. She had lunch with me that day and she shared with me a delicious dish of Sindhi curry, which my wife Kamala prepares excellently.

In the post lunch chat we had that day, I posed a question to Benazir: “How is it” I asked her, “that though both India’s as well as Pakistan’s political leadership had imbibed a similar political culture under British rule, India had managed its democracy with remarkable success but in Pakistan democracy had been a total failure.” Benazir’s reply was succinct: “I attribute your country’s success to two factors: firstly, your Army is apolitical; and secondly, your Election Commission is constitutionally independent of the Executive.”

Benazir had rightly identified the two guarantees for Indian democracy. For the first of these ― the Indian Army never nurturing political ambitions of any kind ― the credit goes entirely to our armed forces and those who have led it since independence, while credit for the Election Commission’s independence must be given to the Constituent Assembly.

There were, however, eminent participants in the Constituent Assembly debate on Art. 324, who wanted the Election Commission to be invested with even greater independence than given to it. These members did not approve of the fact that the Election Commission was to be appointed by the Central Government, and that the safeguards provided to the Commission were limited to its removal. Speaking on the occasion, Pandit Hriday Nath Kunzru said:

“ We are anxious, Sir, that the preparation of the election rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartiality can be relied upon in all circumstances. But, by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other officers by the Central government. The Chief Election Commissioner will have to be appointed on the advice of the Prime Minister, and if the Prime Minister suggests the appointment of a party man, the President will have no option but to accept the Prime Minister’s nominee, however unsuitable he may be on public ground”.

In 2006, the then Chief Election Commissioner Shri B.B. Tandon, in a well-argued letter addressed to Rashtrapati Dr. A.P.J. Abdul Kalam, had pleaded with Government that just as in the case of the Central Vigilance Commission and the National Human Rights Commission, the appointments are made not by the Executive but by Committees in which the Speaker of the Lok Sabha and Leaders of Opposition in Parliament are also included, in case of the Election Commission also, a similar Committee should be authorized to do so. Shri Tandon concludes his letter to Dr. Kalam with the observation:

“This approach would not only be in keeping with the spirit and sentiment flowing from the debates in the Constituent Assembly but also further strengthen the faith of the people of our great democracy in the continued impartiality, neutrality and credibility of the Election Commission.”

In the context of the current controversy about Shri Navin Chawla, it would be educative to compare Art.124 dealing with the Supreme Court, with Art.324 laying down provisions relating to the Election Commission. Art.124 provides that neither the Chief Justice of India nor any other judge of the Supreme Court can be removed from his office except by a process of impeachment laid down by Parliament. In case of the Election Commission, however, this kind of protection is provided only to the Chief Election Commissioner, and not to the Election Commissioners. In case of the other Election Commissioners the Constitution says that they “shall not be removed from office except on the recommendation of the Chief Election Commissioner.”

On behalf of the BJP, Party General Secretary, Shri Arun Jaitley has rightly argued that the word ‘recommendation’ used in the second proviso of Article 324(3) must be construed as a binding recommendation. Jaitley has drawn attention to Article 217 of the Constitution relating to appointment of High Court Judges where the appointment is to be “after consultation with the Chief Justice”, the Chief Justice’s views has always been regarded binding.

The Party therefore, feels that the Chief Election Commissioner’s recommendation with regard to Shri Navin Chawla must be forthwith accepted by Government.