Statement by Shri Arun Jaitley,
General Secretary, Bharatiya Janata Party

Bharatiya Janata Party is concerned about the statement of the Government of India through the Union Law Minister to the effect that the Constitution of India would be amended in order to ostensibly create parity between the three Members of the Election Commission and make the Petition seeking the removal of Shri Navin Chawla as Election Commissioner infructuous.

The Bharatiya Janata Party had sought the removal of Shri Navin Chawla from the Election Commission in accordance with the provisions of Article 324(5) of the Constitution. The removal has been sought on the ground of the partisan conduct of Shri Chawla before his acquiring the membership of the Election Commission and also during his functioning as a Member of the Election Commission. It is this close proximity of Shri Chawla to the Congress Party and its political functionaries that creates an apprehension in the minds of the right thinking people that he cannot function independently and in a detached manner as a member of the Election Commission. The Petition extensively mentions the role of Shri Navin Chawla during the Emergency, the observations made by the Justice Shah Commission, his acquisitions of prime postings, grant of MPLAD funds to private trusts controlled by Shri Navin Chawla by Congress MPs and the partisan role of Shri Chawla as a Member of the Election Commission.

The Election Commission should be politically detached and equi-distanced. If the practice of appointing partisan persons as member of Election Commission gets established as a precedent, it will provide a temptation for future governments to pack the Election Commission with its own sympathizers. The threat is more acute because it is not an independent collegium that nominates the members of the Election Commission but the political government of the day which does so.

The Union Law Minister’s statement has confirmed our worst fears. Here is a Government in power which, to save Shri Navin Chawla, is willing to go to the extent of amending the Constitution. This statement is conclusive of how much value the Congress Party attaches to the continuation of Shri Navin Chawla as a Member of the Election Commission. When this statement is read in the context of the action of Prime Minister’s office in not even forwarding the Petition seeking Shri Chawla’s removal to the Chief Election Commissioner for his recommendations, the vested interest of the Congress Party in the continuation of Shri Navin Chawla as a member of the Election Commission gets confirmed. The Constitution deliberately provided for a Chief Election Commissioner to make recommendations whether to continue or not a member of the Election Commission. What goes on within the four-walls of the Election Commission is known only to the Chief Election Commissioner and not to the political government. If there is an allegation of bias against a member of the Election Commission of favouring the government in power, it is only appropriate that it is the Chief Election Commissioner who adjudicates the allegation of bias and not the political establishment which is the beneficiary of that bias.

As of today, the constitutional position regarding the status of the CEC vis a vis the Election Commissioners is governed by the decision of the Supreme Court of India in the case titled T.N. Seshan vs. Union of India, reported at (1995) 4 SCC 611, which reads,-

“…….. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they could not be conferred the same type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or Executive pressure, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC.…….”

The Central Government seems to have conveniently forgotten that it is an amendment to the Constitution that it is perceiving. The Congress Party does not command a two-third majority in either Houses of the Parliament to amend the Constitution. Even with its allies it is unlikely to reach that figure.

Shri Navin Chawla’s episode will once again put the Left parties on trial. They will have to make a judgment whether to blindly support the constitutionally inappropriate action of the Congress Party or lean in favour of strengthening independent constitutional institutions.

(Shyam Jaju)
Office Incharge