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Unfair to impute motives to CEC
B S Raghavan
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February 02, 2009
I can boldly assert that I am the only living former civil servant who, as a member-secretary of the high power committee to advise follow-up action on the report of the Emergency Excesses Inquiry Commission chaired by the former Supreme Court Chief Justice J C Shah, had dealt with every aspect of the commission's indictment of Navin Chawla, who is currently in the news for the wrong reasons.

The chairman of the committee, L P Singh, a colossus of the civil service, and its two other members, M M L Hooja, one of the most outstanding personalities of the intelligence community of the world, and D P Kohli, the founder and father-figure of the Central Bureau of Investigation, with all of whom I had the good fortune to work during my nine years (1961-69) in the Union ministry of home affairs, were persons regarded as legends in their own life time.

As part of our mandate, even though Justice Shah himself was an eminent jurist with thoroughness as his forte, in order to make assurance doubly sure, we went into his entire report with great objectivity and an open mind to convince ourselves that his findings were duly substantiated by oral and documentary evidence.

At the time of the Emergency of 1975-77, Navin Chawla was private secretary to the lieutenant governor of Delhi [Images], Kishan Chand (who later committed suicide unable to bear the 'humiliation' following the adverse finding about him in the Shah Commission's report). According to Justice Shah, Chawla, along with his cohorts in the police at the time, 'exercised enormous powers during the emergency because they had easy access to the then prime minister's house. Their approach to the problems of the period relating to the citizens was authoritarian and callous. They grossly misused their position and abused their powers in cynical disregard of the welfare of the citizens, and in the process rendered themselves unfit to hold any public office which demands an attitude of fair play and consideration for others. In their relish for power, they completely subverted the normal channels of command and administrative procedures.'

Shocking material

Chawla was also found to have exercised 'extra-statutory control in jail matters', including 'the treatment of detenues'. Not confining himself to dictating to his boss as to the persons to be arrested, he also prescribed how they were to be treated in prison. For instance, he was for constructing special cells with asbestos roofs to 'bake' certain prisoners. Kishan Chand pathetically admitted to Justice Shah that he was not a free agent and Chawla used to receive instructions directly from Sanjay Gandhi and he (Kishan Chand) came into the picture only to the extent that he was required to fulfill some technical formalities.

The L P Singh committee had no doubt that the shocking material contained in the Shah Commission's report indeed made Chawla unfit to hold any public office and that he deserved to be summarily dismissed from service without any further inquiry or proceedings, invoking the special powers under provisos (b) and (c) of Article 311 of the Constitution. This precisely was the fate Chawla would have met with but for the fall of the Janata Party government and return of Indira Gandhi [Images] to power resulting in the restoration to coveted posts with a vengeance of all those indicted by Justice Shah.

Appointing a person with such a background to the Election Commission which is the fountainhead of all other institutions of democracy was itself a brazen defiance of norms of accountability and decencies of public life. This is quite apart from the allegations of bounties received from the Congress government in Rajasthan and a number of Congress the Jaipur-based Lala Chaman Lal Education Trust established by Chawla and his wife, and the unsavoury speculation engendered by the government of Italy [Images] conferring on him the Mazzini award in March 2005 'in recognition of his efforts to forge a new relationship with Italy and strengthening existing bonds'.

Omnibus nature

Now to the orchestrated badmouthing of the Chief Election Commissioner N Gopalaswamy for sending a report to the President recommending removal of Chawla from the office of  the Election Commissioner under the second proviso to clause(5) of  Article 324 of the Constitution. While the first proviso stipulates that 'the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court�', the second proviso lays down that 'any other Election Commissioner or regional commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner'.

The distinction between the authority of the CEC and other Election Commissioners is, as the Supreme Court pointed out in one of the judgments, in order to preserve and safeguard his independence, he has to be treated differently from other members of the Election Commission.

From the omnibus nature of the wording of the proviso, it is apparent that the CEC can make such a recommendation on the basis of either information provided or received from a voter or citizens' group, including a political party, or his own judgment formed from his observation of the behaviour and conduct of Election Commissioners.

In short, he can act both suo motu and in the course of disposing of any reference made to him. In this specific case of Chawla, the CEC had had the opportunity of observing the manner of functioning of his fellow commissioner for more than three years and also had before him the memorandum of the Bharatiya Janata Party and 205 MPs originally argued before the Supreme Court.

Political spectacles

While withdrawing it in 2006 in the light of the CEC's assurance in his affidavit that he already had the power under the Constitution to recommend removal of any Election Commissioner for valid reasons, the petitioners had explicitly stated that they were 'independently sending a copy � of the memorandum to the Chief Election Commissioner so that he may begin to act in the matter immediately'.

Simply because the CEC's report on Chawla is apt to please the BJP, some commentators have taken umbrage at Gopalaswamy's recommendation and imputed motives to him. The timing of the report has galled them as well. In recommending removal of one's own colleague from office, the CEC undertakes a grave responsibility, and it is understandable if he wanted to take as much time as possible just to be absolutely sure that he was fair and just in discharging an unpleasant public duty to uphold the sanctity of elections and bolster democratic institutions.

His approaching retirement must have brought home to him the necessity of passing on to the President a conclusion that has a direct and intimate bearing on the integrity, impartiality and independence of perhaps the most vital and sensitive constitutional body, and that can pollute the purity of the entire electoral process. It is incumbent on mature and dispassionate analysts not to look at the CEC's report through political or ideological spectacles and import into it hidden purposes and meanings.

B S Raghavan is a former director (political) at the ministry of home affairs

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