Page 1 of 2 Unholy row in India's election commission
Santwana Bhattacharya
NEW DELHI - A bout of political gamesmanship in the run-up to elections would
normally be seen as par for the course in India's raucous democracy.
But this time the controversy has tainted institutions hitherto deemed
sacrosanct. With national polls just 10 or so weeks away, the Election
Commission (EC) of India - the constitutional body mandated to conduct the
mammoth exercise, spread across 26 states, in a free, fair and visibly
non-partisan manner - has erupted in an ugly spat that has politics written all
over it.
On the face of it, it's a simple issue. The EC is a three-member
panel, on the neutrality and autonomy of which India's democratic process is
anchored. In mid-January, the panel's chief, who functions on the principle of
being "one among equals", cast doubt on the political impartiality of one of
his junior colleagues, who is due to succeed him as chief during this summer's
elections.
But why has this internecine war, in what should be a faceless quasi-judicial
set-up, become a swirling controversy that has dragged in the high office of
the Indian President, divided the entire polity, and even embroiled the legal
fraternity? Why is the media so full of it, with arcane though vital questions
of constitutional law being debated on front pages, faithfully reflecting the
contradictory positions taken by legal eagles?
For one, it's unusual for a vital institution of the state to be in flux
precisely at the time it's called into duty: an unprecedented situation,
fraught with latent danger. Constitutional bodies are meant to have a sense of
solidity, a weight of tradition and protocol that stabilizes the system.
Anything that tips it beyond this delicate balance in the present context could
potentially derail the upcoming national elections and India could be facing a
constitutional logjam.
For another, it offers a fascinating picture of a law in evolution in a real,
messy, practical context, being shaped by events and circumstances that it is
actually meant to regulate. And lastly, this is also a play of personalities.
The Election Commission is hardly the faceless legal bureaucracy you would
expect it to be: over the last two decades, it has hosted a bunch of
charismatic figures who, defying the collective might of the Indian political
class, have played on popular yearnings and caught the public imagination.
The face-off
But first, the essential details of the present face-off. Although it had been
simmering for almost three years, the whole thing hit page one with an
exclusive by the editor of the southern newspaper, The Hindu. Chief Election
Commissioner N Gopalaswami had sent a suo motu - meaning on its own
motion - report to President of India Pratibha Patil on January 16. In this
92-page report, shored up by reams of annexures, he had recommended the removal
of fellow Election Commissioner Navin Chawla for consistently taking partisan
positions favoring the ruling Congress party.
Gopalaswami cited 12 instances to prove his case. From the profane to the
serious, these occurred over a period between 2006-09 - that is, since Chawla
was appointed Election Commissioner by the Congress-led ruling coalition. The
basic charge is that Chawla attempted to influence the timetable of assembly
elections in states such as Gujarat, Uttar Pradesh, Himachal Pradesh and
Karnataka to suit the Congress's calculations. Three of these elections,
however, were won by the Bhartiya Janta Party (BJP). The bombshell of a report
goes on to suggest that Chawla regularly leaked classified information to
Congress bosses - often while the EC's closed-door internal meetings were in
progress. Some of Gopalaswami's citings appear quite comic. For example, he
alleges that Chawla used to frequent the washroom during crucial meetings to
get feedback from his political bosses on what position to take.
Known for his long association with the Gandhi family - especially Sonia
Gandhi, who had been befriended by his wife Rupika Chawla when they were both
students of art restoration - Navin Chawla, Gopalaswami alleged, tried to
protect Sonia at least twice. Once during what was known as the
"office-of-profit" controversy, when members of Parliament holding even titular
posts in government-sponsored bodies fell victim en masse to a
witchhunt-gone-awry that threatened to consume all parties.
Much to the embarrassment of the ruling party, even Sonia had to resign and get
re-elected to avoid disqualification from Parliament. At another time, Chawla
prevaricated on a case filed by a lawyer seeking to disqualify the Italian-born
Sonia for receiving the Order of Leopold honor from Belgium (thus, allegedly,
demonstrating her "allegiance to foreign forces"). On a third occasion, he
seems to have supported the move to send Sonia Gandhi a notice for making a
"provocative" campaign speech - calling Narendra Modi, the chief minister of
Gujarat, a "peddler of death" - but wanted it to remain secret.
Why is this classified dossier being seen as part of a "proxy war"? Because its
timing is itself not without political significance. Rather curiously, the
report comes just prior to the fixing of the general election schedule. It is
also bang in the middle of the election process - that is, on April 20 - that
Gopalaswami will turn 65 years of age, the cut-off date of superannuation for a
chief election commissioner. And, by way of past precedence, Chawla would take
over from him as the Chief Election Commissioner (CEC). It is, of course, a
constitutional position highly bound by rule of law and thus insulated from
unilateral or arbitrary decision-making. But as the above allegations show,
there are things a commission can do that go for or against political
interests.
For this reason, in recent years, the EC has become subject to political
appointments - career bureaucrats, tacitly loyal to one dispensation or the
other, being rewarded with this high-profile posting and in return subtly
guarding those interests while overall maintaining the poise and illusion of
constitutional propriety. The present case has all the elements that illustrate
this. The hostilities actually go back to 2006, right after Chawla came into
the EC, when the Opposition BJP/ NDA petitioned then President APJ Abdul Kalam
to remove him.
After this petered out, they moved court. In a judgement that left some loose
ends, the Supreme Court told the petitioners to approach the CEC. It is this
BJP petition, filed with Gopalaswami one year ago, that has now suddenly borne
fruit. The key point of legal contention in all this revolved around whether
the CEC has suo motu powers to investigate a fellow commissioner and
have him removed.
Constitutional subtleties apart, there was some good, old-fashioned muck also
flying around. The March 2006 petition was based on media reports - which,
miraculously, surfaced around the same time - that a private trust run by
Chawla's wife had been receiving discretionary donations from Congress
legislators, out of public funds meant for development works. Also, that the
trust got land near Jaipur, Rajasthan, at highly subsidized rates during the
tenure of a Congress government. (A fresh court case was filed on it this week,
signaling further bloodletting.)
That Chawla, a 63-year-old bureaucrat, had a controversial stint in Delhi
during the infamous internal "emergency" of 1975, when a state of emergency was
declared in India, and was seen to be close to Sanjay Gandhi was also a point
of grouse. Many leaders of the opposition BJP spent time behind bars during the
emergency.
Having made the decision to name Chawla to the EC, however, Prime Minister
Manmohan Singh's cabinet in 2006 decided to tough it out and rejected the
petition - though filed with the President, it was the executive's call. The
ruling United Progressive Alliance (UPA) bought temporary peace by duly
okaying, alongside, the elevation of Gopalaswami to the CEC post. This it did
despite the fact that he was appointed to the EC during the previous BJP and
National Defense Academy rule. It's less easy to make charges of bias stick on
a rulebook-bound officer like Gopalaswami. But prior to his own entry into
the
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