There has been considerable opinions generated on the issue, as to whether the Chief Election Commissioner of India could suo motu move the recommendation for the removal of an Election Commissioner of the Election Commission of India.
My opinion on the issue had already been spelt out in my earlier blog, the link for which is produced below for reference:-
WE as a nation have not yet completed 6 decades since the adoption of the CONSTITUTION OF INDIA, and are yet to understand fully the meaning of the WORD and the SPIRIT that the CONSTITUTION represents, rather OUGHT TO REPRESENT. It is not merely the PREROGATIVE OF THE SUPREME COURT OF INDIA to treat the CONSTITUTION OF INDIA as a DYNAMIC & ORGANIC document that leads the Nation, but also our duty as INDIAN CITIZENS to form opinions and strive to give it a meaning that would be in consonance with the ideals of our founding fathers and the ideals of Democracy.
Maybe, our opinions are not THE LAW DECLARED and MAY NOT HAVE THE BINDING FORCE IN THE COURTS OF LAW, yet it is only when the opinion of the common man crystallizes that the opinion of the political leaders are FORCED, with no recourse to their hidden, devious and self-seeking agenda.
Let us see the extent of the powers granted to the UNION CABINET, under the Constitution of India. Article 73 of the Constitution carves out the EXECUTIVE powers of the union, exercisable thru them. The excerpted portion of the article, shows that it is limited to the extent to which the parliament has the power to make laws.
73. Extent of executive power of the Union.-
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend-
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
Relevant to our discussion is the entry no 72 of List I of Schedule VII of the constitution. One of the powers enlisted is “ELECTION COMMISSION” as could be seen below.
Schedule VII List I.
72. Elections to Parliament, to the Legislatures of States and to the offices
of President and Vice-President; the Election Commission.
Yet the power to make laws are circumscribed vide the provisions of clauses 2 and 5 of Article 324 of the constitution. As already stated in my earlier blog, the power to prescribe the mode of decision making within the Election Commission, cannot be prescribed by the Parliament, as the power is limited to the determination of the number of Election commissioners to be appointed to the commission, their service conditions and the tenure of office of the Commissioners/ Regional Commissioners. The parliament has exceeded its powers and the law relating to the prescription of UNANIMITY and failing which by MAJORITY is ultra vires the constitution.
In any case, the suggestion for UNANIMITY is GRATUITOUS, as the law already envisages non-unanimity and prescribes MAJORITY as the other mode of decision making!
There are, according to me, two distinct functions that the PRESIDENT has to perform. Those decision that are POLICY BASED and those which are SYSTEM BASED.
The Cabinet is a creature of the CONSTITUTION and derives its existence based on a SYSTEM prescribed within the constitution. The Cabinet is responsible to the parliament, and if it has a brute majority, it could steam roll its way through the parliament, yet the constitution has other organs which can limit its reach thru the INSTITUTIONS that derive their existence and their powers from the constitution. One of those institutions is the ELECTION COMMISSION.
Just as the independence of the Judiciary is a guarantee to the Individuals from the tyranny of the other organs of the state, THE ELECTION COMMISSION OF INDIA is a guarantee to the fairness of the conduct of elections, which forms the corner stone of the rule of democracy – rule of majority. In the determination of the rule of majority, it is essential that the process of ELECTIONS shud not be vitiated by the persons manning the conduct of the elections.
THEREFORE THE ELECTION COMMISSION OF INDIA IS A SYSTEM BASED ORGAN AND NOT A OPINION BASED ORGAN. IN H.L.A.HART’S TERMS THE ELECTION COMMISSION FORMULATES THE SECONDARY RULES AND THEREBY SHOULD NOT BE SUBJECT TO THE OPINION BASED ORGAN LIKE THE CABINET.
It has been mistakenly interpreted that the Cabinet’s (council of Ministers) position to AID AND ADVISE the President extends to even issues to which the EXECUTIVE POWER OF THE UNION DOES NOT EXTEND. Some of the powers to which the EXECUTIVE POWER of the UNION DOES NOT EXTEND are:-
1. Appointment of the Prime minister
2. Regarding the decision on questions of disqualification of members of the houses of the parliament
The above mentioned points are not exhaustive and more could be added. The LEGAL PRINCIPLE that govern the said issues is that the PRESIDENT NEED NOT HAVE TO INCLUDE A PERSON, WHO IS INTERESTED IN EITHER OF THE OUTCOMES OF THE ISSUE, IN THE DECISION MAKING PROCESS OF THAT ISSUE.
ACCORDINGLY as per ARTICLE 103 clause 2, reproduced here below:-
103. Decision on questions as to disqualifications of members.-
(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.]
it would be ridiculous to include the cabinet in the determination of the disqualification of the member of Parliament, which COULD have an effect on the cabinet.
Further, if the cabinet is not made a party to that decision making process, the Cabinet would not be accused of any biases arising out of the decision. It provides for immunity from such accusations which erode the bonafides of the cabinet.
Hence the framers of the constitution had excluded the CABINET and the reliance is placed on the opinion of the ELECTION COMMISSION and makes the decision of the Commission BINDING on the PRESIDENT.
Even though the principle of Nemo judex in sua causa (none to be judge of his own cause), is extensively applied to Administrative Law, there is an undercurrent of this principle running through all legal principles.
To return to the issue of OPINION V. SYSTEM, the WILL of the day should not be allowed to override the SYSTEM, that is longer lasting and the bedrock to the ideals of DEMOCRACY.
IN CONCLUSION, SINCE THE ELECTION COMMISSION COULD ALSO BE A SINGLE MEMBER COMMISSION, AND CANNOT EXIST WITHOUT THE CHIEF ELECTION COMMISSIONER, THE CHIEF ELECTION COMMISSIONER CAN INITIATE SUO MOTU THE RECOMMENDATION OF REMOVAL OF AN ELECTION COMMISSIONER AND THE PRESIDENT IS BOUND TO APPLY HIS OWN MIND WITHOUT REFERENCE TO THE CABINET AND DECIDE THEREON.
As a footnote i’d like to add that there are umpteen reports stating that Mr.Navin Chawla has a TRUST named CHAWLA TRUST that had received six acres of land from the Rajasthan Govt., and also funds from the MP’s funds ( pl. refer to an article titled FREE & FAIR ELECTION COMMISSIONERS by Sriram Panchu in THE NEW INDIAN EXPRESS dated 13th feb, 2009 Bangalore edition page 9). To get an opinion from the cabinet in this issue would be fraught with ascription of bias. The President’s decision should be seen as one that is free from any bias and based on the material placed by the CEC.
LET US NOT SACRIFICE SYSTEMS, ON THE ALTAR OF THE OPINIONS OF THE POLITICAL PARTIES.