A Constitutional Confusion

Chief Election Commissioner N.Gopalaswami has appealed to the President of India Mrs. Prathiba Devi Singh Patil to terminate the services of election commissioner Mr.Naveen Chawla.

In his letter he has stated that his colleague is not honest towards his position as well as responsibilities and because of his leanings towards the other side, and is responsible for the neglect of the proper performance of his constitutional duties. As he is not neutral in his stance, therefore is not fit to hold such an important and delicate position. It has been pointed out that Mr.Naveen Chawla has a pro Congress attitude which is reflected in the response of the Congress and the BJP to the appeal. The BJP has demanded the immediate termination of Mr. Naveen Chawla and said the government is obliged to accept the Chief Election Commissioner’s appeal. On the other hand, the Congress seems hesitant to accept it and has said that it will review the appeal and take the opinion of legal experts in this matter.

Mr. Naveen Chawla was appointed during the UPA government’s term and it has been observed that there have been many points of differences between the Chief Election Commissioner N. Gopalaswami and Election Commissioner Mr. Naveen Chawla. Last year in Karnataka, the Chief Election Commissioner wanted to end President’s rule before elections, to which Election Commissioner S.Y.Quraishi agreed but Mr.Naveen Chawla disagreed. He was in favour of accepting the dates that a ‘particular’ political party wanted. In the same way, Mr.Naveen Chawla disagreed on the aspect of supervision during elections in Uttar Pradesh in 2007.

During an election rally in Gujarat, when Mrs. Sonia Gandhi used the phrase ‘Merchants of Death’ in her speech, and was given a notice by the Election Commission, Mr.Naveen Chawla had protested.
At another time, when Mrs. Sonia Gandhi was honoured by Belgium and the Election Commission had issued a notice in her name, Mr.Naveen Chawla had differed in his opinion with the Chief Election Commissioner, which shows they’ve had this problem between them for the past two years.

External Affairs Minister, Mr.Pranab Mukherjee, who is also currently officiating the Prime Minister, responded by saying that this matter would be followed up, legal advice sought and the government’s decision announced at the proper time.

In the absence of the Prime Minister, who is undergoing treatment and will take time to recover completely and resume his duties, the cabinet may find itself unable to decide on this important matter. On the other hand, the legal and constitutional relevance of this appeal has been questioned. Is the government obliged to accept it or can reject it?

Government sources say that according to Article 1234 of the Constitution, all government matters as well as all appointments and terminations made by the President of India to important positions are basically based on proposition of the Central Cabinet.

As such, the decision lies not with the President, but with the Central Cabinet whose suggestions and recommendations are sent through the Prime Minister to the President and not vice versa.

Therefore, the decision in this matter rests with the Central Cabinet and not the President.

The government has tried to explain that the termination of duties of important officials of the Election Commission is not easy and can be done only after proper trial which is a long process.

This step by the Chief Election Commissioner has started a constitutional argument on the one hand and given rise to a political war on the other.

Moreover this matter has come to light at a very crucial and delicate point of time. General elections, if held according to schedule will be conducted after two months. But the Chief Election Commissioner Mr. N.Gopalaswami will be retiring from his position on the 20th of April when preparations for the General elections will be in full swing and Mr. Naveen Chawla will be a part of all those proceedings.
Sehroza DAWAT, 04 feb09 Editorial Translated by: Salma Nazir, Riyadh

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