Hon'ble the President of India,
Rashtrapati Bhavan,
New Delhi.

Petition under Article 324(5) of the Constitution of India

Your Excellency,

This is a petition under Article 324(5) of the Constitution of India seeking the removal of Shri Navin Chawla who was appointed as an Election Commissioner on 16 May, 2005. The provision of Article 324(5) of the Constitution of India provide that the Chief Election Commissioner shall not be removed from his office except in the like manner and on the like grounds as a Judge of the Supreme Court. Thus, the Chief Election Commissioner can only be removed by an impeachment motion moved against him by either House of Parliament. Second Proviso to the said Article also provides that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. The Constitution, thus, clearly stipulates that whereas the Chief Election Commissioner can be removed from office only by a motion of impeachment, any other Election Commissioner shall be removed from office by the President only on the recommendation of the Chief Election Commissioner.

Arcticle 324 thus clearly stipulates as under :

(i) That the Election Commissioner can be removed by the President.

(ii) That grounds on which the Election Commissioner can be removed should be grounds, which otherwise disentitle him from functioning effectively and independently as Election Commissioner and render him unfit to discharge functions as an Election Commissioner.

(iii) That this decision to remove should be based on the recommendations of the CEC.

In our respectful view, the recommendation of the CEC is binding on the President. An interpretation ought to be given to the second proviso to Article 324(5) that it is only the Chief Election Commissioner who in the conduct of proceedings of the Election Commission is the key person aware of the facts, which reflect upon the functioning of an Election Commissioner. The Council of Ministers or the President who acts on its advice may not even be aware of all the facts on which this decision is to be made. The analogy in this regard is to be drawn from the provisions of Article 217 of the Constitution which provides that a Judge of a High Court shall be appointed in consultation which the Chief Justice of India. A purposive interpretation, which strengthens the independence of the judiciary, has been given to the meaning of the word "consultation" in Article 217 so that the consultation and advice of the Chief Justice of India is binding on the political executive. An interpretation has been given to Article 217 by the Hon'ble Supreme Court, which strengthens the independence of the judiciary rather than curtails it. On the same analogy the Election Commission of India plays a vital role in the conduct of free and fair elections. Of late, the active role of the Election Commission in imposing discipline has increased to ensure fairness in the conduct of elections. Thus, it is essential that any Election Commissioner or the Chief Election Commissioner should be persons of impeccable integrity and impartiality about whom there is no doubt with regard to bias or likelihood of bias.

It is in the backdrop of these objectives that we, the undersigned Members of Parliament have been constrained to approach your Excellency to seek the advice and recommendation of the Chief Election Commissioner on the continuation or otherwise of Shri Navin Chawla as an Election Commissioner in the Election Commission.

The circumstances leading up to the filing of the present petition are detailed herein as under:

Originally, the Election Commission of India was headed by only one person, namely the Chief Election Commissioner. The Constitution was thereafter amended in 1993 to provide for appointment of various Election Commissioners. Two Election Commissioners were appointed in the year 1993 and since then the composition of the Election commission is comprised of a Chief Election Commissioner and two Election Commissioners.

It is a condition precedent for the appointment as Members of the Election Commission that they have administrative ability to conduct elections, impeccable integrity, past experience and above all an ability to be impartial and remain politically detached. These amongst others are the most relevant factors that the appointing authority has to consider. The Administrative Department of the Government which deal with the appointment is the Legislative department in the Ministry of Law and Justice. The Minister of Law and Justice initiates the appointment and the same is approved by the appointments Committee of the Cabinet. After the approval of the Cabinet Committee of Appointments and the Hon'ble Prime Minister, the recommendation is forwarded to the President of India who approves the same and the appointment is thereafter notified. It is incumbent upon the Executive when it considers suitable persons for appointment as members of the Election Commission to bear all these relevant considerations in mind. If the history and the background of the officer concerned gives reasonable apprehension that there is a likelihood of political bias, past identification with political parties, close intimate relationship with political parties/leaders, the said person would be rendered unfit for discharging functions as Member of the Election Commission. The Election Commission does not merely conduct elections but also discharges several quasi judicial functions such as adjudicating disputes regarding Party election symbols, registration of political parties, splits in the organizational structure of party etc.

Shri T.S. Krishnamurthy, Chief Election Commissioner retired on 16th May, 2005 and upon his retirement a vacancy was created in the Election Commission. Shri B.B. Tandon was appointed as Chief Election Commissioner. Shri Gopalaswami already occupied one office of the Election Commissioner. The vacancy created by elevation of Shri B.B.Tandon as CEC was filled up with Shri Navin Chawla, an IAS officer of the 1969 batch.

internal Emergency (1975 77) and Shri Navin Chawla

During the proclamation of Internal Emergency on 26th June, 1975 Shri Navin Chawla was an officer of the rank of Under Secretary in the Government of India. He was Private Secretary to the Lt. Governor of Delhi, Shri Kishan Chand, during this Period. The democratic institutions were suspended and various vindictive and extra constitutional actions were taken during the Emergency. A large number of officers of the Govt. of India attempted to maintain their distance from the atrocities being committed but some being more loyal than the king decided to participate in the tyranny of the Emergency. Shri Navin Chawla was a prime example in this. Justice J.C. Shah Commission was appointed in 1977 to inquire into all these facts and the excesses committed. The report of the said Commission extensively records the testimony of the witnesses and observations of Justice Shah, Some illustrations of Shri Navin Chawla's conduct during the Emergency are as under

1) Shri Navin Chawla would barge into the meetings of the Review Committee appointed to determine whether detention of political detenus should continue or otherwise. He would dictate to the senior officers who were members of the Review Committee with regard to the release or the continued detenion of the political detenus. He would issue directions in the name of the Lt, Governor without Lt. Governor's instructions,

2) He would direct the Superintendent of Jail to permit some Congress political activists to have free access to the person so that some of the detenus could be persuaded to politically change their stance. The report adds that Shri Chawla had suggested that the construction of some cells with asbestos sheets roof to "bake certain persons" under detention.

3) According to the testimony of Shri S.K. Batra, the then Superintendent of Jail, Shri Chawla had on one occasion suggested that certain troublesome detenus should be kept with the lunatics,

4) Shri Chawla had ordered the jail authorities to promote the Family Planning Programme advocated by Shri Sanjay Gandhi. Shri Navin Chawla directed a decision that any detenu seeking parole would have to undergo an incentive in the form of sterilization. The report adds According to Shri J.K. Kohli and Smt. (Shailja) Chandra (later Chief Secretary of Delhi) grant of parole as an incentive for sterilisation was a decision taken by Shri Navin Chawla. Shri Navin Chawla has himself said that this was done under the directions of the Lt. Govenor According to Shri Krishan Chand, Navin Chawla had given an assurance to the detenues to release them on parole if they got themselves sterilized. He therefore had no option but to grant them parole when the cases were put up to him." It appears that on account of political relationship with Shri Sanjay Gandhi that Navin Chawla enjoyed the Lt. Governor was left with no option but to accept the directions of his Private Secretary. Justice Shah on this had commented "That the Lt. Govemor was the Lieutenant and the Private Secretary the Governor". When some student detenus petitioned from the jail to write their exams in order to be able to continue their studies, the students were considered by the L.G. and Shri Navin Chawla as 'high security risk' and therefore could not be permitted even to continue their education and write their exams.

5) The officers of the Delhi Government were terrorized because Navin Chawla always passed on directions in the name of decisions having been taken up at the highest level, Smt. Chandra, a senior officer deposed that "She clarified that when Navin Chawla used the term higher level, she always got the impression that he meant either the Minister of State in the Ministry of Home Affairs or the PM's House, i. e. the Prime Minister herself or Shri Sanjay Gandhi".

6) The Lt.Governor's plight was most pathetic. Justice Shah described his position as "Shri Krishan Chand accepted before the Commission his full Constitutional responsibility for all that had happened in Delhi during the time that he was appointed Lt, Governor. His explanation is that he was not a free agent; that he used to receive conflicting instructions from the Ministry of Home Affairs and the Prime Minister's house; that the officers who were close to the Prime Minister's house and Shri Sanjay Gandhi, particularly Shri Bhinder, Shri Navin Chawla and Shri Bajwa used to receive instructions directly and he came into the picture only to ill extent that he was required to fulfil some technical formalities. " A tragic aftermath of all these developments was that shortly after the Emergency Shri Krishan Chand committed suicide.

From directing arrests of detenus, non release of political detenus, release of some whom the higher level 'wanted' to intimidating of his officers of bureaucrat, Shri Chawla acted as political conduit of the political boss in power. He was primarily the agent of the extra constitutional centre of power, namely Shri Sanjay Gandhi. After a journalist was detained under MISA allegedly at the behest of a Congress Leader, Smt. Ambika Soni, the reports records as under - "Shri P. S. Bhinder has said that he was present on the spot at the time of the incident leading to the arrest of Shri Kapoor and Smt. Soni had told him: 'Mr. Bhiner, / have done your job'. Navin Chawla has also mentioned that Smt. Soni had played a very valiant role in the incident at the Red Fort and was warmly congratulated at the dinner that evening. "

Navin Chawla's career graph as bureaucrat

Shri Navin Chawla's career graph as a bureaucrat after the initial stigma of the role during the Emergency has progressed only when the Congress Party has been in power at the Centre or in the States or the Union Territory of Delhi and has nose dived if a non Congress government was in power. Therefore, in non Congress Governments he has taken postings in Andaman and Pondicherry and when Congress party was in power, he got plum postings in Home Ministry and in the Ministry of Information and Broadcasting.

When the NDA Government was in office, the Government decided that an officer of the UT Cadre should also undertake some postings outside Delhi. Shri Chawla had managed political postings in Delhi for unduly long period. He was, accordingly, posted in Pondicherry. He represented to the Government for posting in Delhi and when his efforts did not materialize, Shri Chawla had no qualms about using his political proximity to Smt. Sonia Gandhi to get postings as a civil servant.

Close Proximity of Shri Navin Chawla and his family members
With the Congress Party, its President and her family members

In political circles, Shri Navin Chawla has been perceived to be extremely close family friend of Smt. Sonia Gandhi and her family. His Wife Rupika Chawla and Sonia Gandhi have together undertaken training at the National Museum in a Course for Art Restoration. This social cultivation of Mrs. Gandhi by Shri. Chawla and his wife has reaped rich dividends for him. It has always been categorically understood in political circles that he was a civil servant who had a special relationship with Mrs. Sonia Gandhi and her family. This close proximity has led to their attending social functions at each others residences.

Allotment of land to a Trust run by Shri Navin Chawla at Jaipur and Donations to his Family Trusts

Shri Chawla runs the Lala Chaman Lal Education Trust in Jaipur. The Trust has not initiated any activities so far. Shri Chawla in an interview has expressed a desire to hand over the Trust to Shri D.R. Mehta, former Chairman of SEBI. He claimed to have discussed the issue with Shri Mehta who has confirmed to television that no such suggestion has ever been made to him. A six-acre plot has been allotted to Shri CHawla by Jaipur Development Authority through Shri Ashok Gehlot. The said plot has been allotted on a miniscule percentage of the market value of the said plot of land. The said plot has now a structure built upon it but on activity has been started. Donations for construction on the said plot have amongst other been made by two important Members of Parliament from MPLAD Funds, the MPs being Shri A.A. Khan and Shri R.P. Goenka. Similarly, Shri Chawla got allotted a plot of land at Jasola, New Delhi where contributions amongst others have come from three Congress MPs elected to the Rajya Sabha. The Three MPs are Smt. Ambika Soni, Dr. Karan Singh and Shri A.R. Kidwai. Senior Congress MPs have admitted to have contributed to these Trusts due to Sh. Chawla's close proximity with Mrs. Sonia Gandhi.

A Trust is being run by Shri Chawla's wife, Smt. Rupika Chawla. he fact that Congress MPs have so liberally donated funds to the Turst controlled by Chawla's family is only on account of the close proximiy of Shri Chawla with the Congress President and its leaders. Shri Chawla in a statement issued on 7th February, 2006 has claimed as a proof of his impartiality that ..... "Shri Sahib Singh Verma, the union Minister of Labour in his letter of 13 February 2003 had offered Rs. 5 lakhs from his MPLAD and wrote accordingly to the Commissioner, MCD. However as he was not area MP, his contribution could not be accepted. He area MP was also approached but he was unable to help."

Shri Chawla deliberately issued a false statement to this effect. His first contention that he declined the donation allegedly offered by Sahib Singh Verma the-then BJP MP on the ground that he was not the Area MP and hence his contribution could not be accepted. The Trust activities are located at Jasola which is part of the Badarpur Assembly constituency of Delhi and which is further a part of the Outer Delhi Constituency of a Lok Sabha seat. Shri Sahib Singh Verma was a Member of Parliament from this Constituency. The alleged reasons given by Shri Chawla declining this contribution is exfacie false. His statement that Area MP was approached is also false since the Area MP was none than Shri Sahib Singh Verma at the relevant time. Obviously nobody else was approached.

Tough Sahib Singh Verma has no record of the said letter mentioned by Shri Chawla; assuming such a letter was written, Shri Chawla has not furnished any reason for accepting contributions out of the MPLAD funds of the Congress MPs. The fact that Shri Chawla had accepted donations from the MPLAD from MPs belonging to the Congress Party is a fact, which was relevant and ought to be considered at the time of his appointment as Election Commissioner.

The factors relevant to be considered by Shri Chawla at the stage of his appointment, inter alia, include his conduct a the time of the proclamation of Emergency in 1975-77, the comments made about Shri Chawla, the fact that his bureaucratic career prospects when the Congress governments were in power, his and his family's close proximity to the family members of Congress President, his having got plum postings from Congress Government, his accepting MPLAD donations only from members of one politics party and his making false statement as to why he declined to accept MPLAD funds of other political parties were all relevant considerations which ought to be considered a the time of Shri Chawla's appointment. Admittedly, the record would disclose that none of these were considered and no mind was applied by the appointing authority and the Members of the Appointment Committee of Cabinet on any one of these factors.

In the backdrop of all these factors it is relevant to note that there is today a reasonable apprehension in the minds of the people of India as also in the minds of Opposition parties of India that Shri Chawla has rendered himself unfit to discharge functions as an Election Commissioner and a Member of the Election Commission. The lack of political detachment is clear from his antecedents. * Shri Navin Chawla's claim that he was permitted to set up these Trusts has taken a serious turn since the original file in the department of personnel is reportedly missing. Chawla should be removed as the Election Commissioner under Article 324(5) of the Constitution of India.

Shri Navin Chawla's functioning in the Election Commission

This is also reflecting on his functioning. We have reasons to believe that even in the conduct of the meetings of the Election Commission, the suggestions made by him, the points raised by him, the view point expressed by him are excessively partisan in nature. They all move in the direction of wanting to help the Congress Party. We are not going into details of all these issues since we believe that it is the Chief Election Commissioner who would be aware that the first hand information in relation to Shri Chawla's conduct and the conduct of the Election Commission Any recommendation that the Chief Election Commissioner may make must take into consideration all facts which are in the knowledge of the CEC with regard to the conduct of Shri Chawla in the course of proceedings of the Commission and its functioning since May, 2005.

That it is on basis of all above antecedents of Shri Chawla and the recent incidents that have come to notice that along with the conduct of Shri Chawla as known to the CEC in the conduct of the proceedings of the Election Commission which ought to form the basis of the recommendation of the CEC to the President.

We believe that the Election Commission must be absolutely impartial. It must also appear to be impartial. The degree of close proximity that Shri Chawla has to one political party and its leadership does not indicate any form of impartiality. We, therefore, appeal to your Excellency that Shri Navin

We are independently sending a copy each of the Memorandum to the Chief Election Commissioner so that he may begin to act in the matter immediately.

With regards,

Yours sincerely,

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