Finally, some Indian story I am going to comment on.
Issue: The Chief Election Commissioner (CEC) Gopalswami recommends dismissal of a fellow election commissioner (chawla) for bias
Govt's response: He doesn't have that right. Govt. shall decide
Fali Nariman's point: CEC overreached and timing was bad
My verdict: Article 324 (5) of the Indian constitution clearly suggests that the CEC shall adjudicate. That the govt. can decide is even morally unacceptable, given the non-partisan nature of the EC. The SC should decide on the case. I believe the CEC has the law on his side. On a moral plane, it seems his dossier is complete in its case against Chawla. The reason why the above article MAY not be read as I do it, is because in the last few years, election commissioners have been appointed on a permanent basis, rather than temporary as was envisaged and followed till early 2000. Hence, it was clear that as the sole permanent commissioner, the CEC had the authority. But the amended law doesnt address the new issue of whether a permanent commissioner can be removed. My sense is in the absence of the clarification, the CEC has the right. But, the law should be amended for a non partisan panel to adjudicate and appoint commissioners.
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Incidently, I found the link to this blog through Avantika's sts msg and read through the above post.
ReplyDeleteIn my opinion Arcticle 324(5) was put in the constitution only to maintain the independence of the EC from government influences. A clear case of separation of powers. It might have been included only to ensure that the executive doesnt use its powers illegitimately in favoring or punishing an EC.
If the aim of the article was to maintain the independence of the EC then it makes little sense why the constitution would bestow power on the CEC to act suo moto in removing an EC. The power to suggest the removal of an EC rests with the CEC but only when it is channeled through a proper route and not taken up suo moto.
The constitution thus offers an absolutely brialliant system to maintain the independence of the EC by putting in place a system wherein the CEC and the executive cannot act independent of each other in a decision involving sacking an EC.
That is precisely the point. If one says that the CEC should route it through the president and should be approved by the PMO it does not really make sense. In a case where an EC is found to be partisan towards the ruling party it is redundant to give the ruling party the rights to veto such a recommendation. I agree with Arjun that such an issue should be dealt with by the SC, considering the independent nature of the EC.
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