Election Commission controversy: Did CEC cross the line?

Q: Address yourself to the point Mr Sibal just made. He is referring to the 1993 act by which additional election commissioners were created and it stipulates that they are equal, that they all have the same rights and privileges and position and prerogatives of a Supreme Court (SC) judge, therefore clearly the CEC cannot sit on judgement and therefore he cannot initiate action against his equals?

Jaitely: I think there are two primary sources of power in this. The first is the constitution which deals with the appointment and the removal. The second is the 1993 legislation which is limited as far as the internal functioning of the EC is concerned. If you read the constitution and the power of removal, it is clear - you read it along with 1993 - they maybe equal in the matter of their administrative functioning but the constitution from 1950 onwards made them unequal in the matter of removal. Unequal because a CEC can be removed by impeachment and election commissioner is removed on the recommendation of its CEC. So right from 1950, they are unequal in the matter of removal and therefore Mr Sibal's basic premise itself is incorrect.

Q: You have gone on record to say that in your eyes, this is what you have described as a grey area and presumably the reason you say that is because there is some inconsistency between the 1993 act and what the constitution says but in that event, surely the constitution has priority and the constitution doesn't preclude a CEC taking Suo Moto action to recommend dismissal?

Nariman: I think in this particular matter, we are trying to bring every fact situation within the scope of the second proviso article 324-325. That is the mistake that we all are making with great respect. The proviso that we are concerned with i.e. the constitutional provision says provided further that any other election commissioner shall not be removed from office except on the recommendation of the CEC. This is meant to be a safeguard against government vagaries vis-à-vis an election commissioner. That is what is intended.

Now the present situation is entirely different; a CEC says his colleague is biased, he puts on record that he is biased, he is entitled to do it, it is something that falls outside the second proviso and it certainly entitles to call the attention of government to it. Government would then consider whether there is something in it and then ask him whether in these circumstances would he recommend the removal of this gentleman and thereupon may act.

Everybody seems to think that the current situation is governed by the second proviso. It is not. The second proviso is meant as a shield for an election commissioner that is to say an election commissioner shall not be removed i.e. even if a government wants to remove him, it cannot remove him except on the recommendation of the CEC and therefore the better view seems to be that a power Suo Moto to exercise under this proviso is not contemplating.

Q: You have had a detailed but somewhat complicated explanation from Fali Nariman, who seems to be saying that no recommendation from the CEC is binding. He is questioning whether the CEC can go Suo Moto but he is saying at the same time that the CEC has a duty to alert the government and invite the government to then ask the CEC for a recommendation rather than go around it why not just simplify it and accept that if the CEC knows up for wrongdoing, he can recommend dismissal rather than ask the government to invite him to recommend dismissal?

Sibal: You didn't let me complete my response. What Mr Nariman is saying is exactly what I was going to say and I have gone on record three days ago by holding a press conference and said that this power cannot be used as a sword, it is a shield and it is a protection to the election commissioners for arbitrary action by the government against the election commissioner. In other words normally the appointing authority can dismiss a person who is appointed but in this particular case what the proviso says is you cannot dismiss except on the recommendation of the CEC.

Mr Jaitley is completely wrong. What Mr Nariman is saying is the following that the CEC certainly has the duty in the event he has some information as his possession to pass on that information to the government but a duty to pass on information is different from recommending his dismissal of Suo Moto.

It is not technical because then you give the chance to the government to probe into the matter in the manner that the government thinks fit and get a response and then come to a firm conclusion and then if the government thinks that he needs to be removed then the government can advise the CEC that we wish to remove him, what is your position?

Q: Do you accept the point made both by Mr Nariman and by Mr Sibal that the CEC has a limited duty to draw the government's attention to a wrongdoing and then invite a recommendation for dismissal but he cannot himself on his own recommend dismissal, do you accept that point?

Jaitley: With utmost respect for Mr Nariman I completely disagree with him. When we interpret the second proviso, it must be interpreted in terms of the identical language but a different provision given in the first proviso. There is an identical language in the beginning of the first proviso provided that the CEC shall not be removed except in the like manner and for the like grounds as a judge of the court.

Now in the first proviso, the government does not provide a proviso in the last stage. It is members of parliament who will move a motion for impeachment. It is a motion which will be admitted and an enquiry will be set up and it is the houses which will debate and pass a motion.

Now that motion is necessarily against the CEC binding as far as the government is concerned. It is not intended to be a protective shield. Once the motion is passed, the government cannot say I have an option whether to accept it or not, the President must then act accordingly. Similarly, with an identical language in the second proviso a different provision is mentioned that an election commissioner shall not be removed except on the recommendations. It is the CEC who knows himself how to election commissioner is functioning and if he has reasons to believe that this is a case of bias or unfitness, he will make a recommendation.

As in the present case, the charge is of bias in favour or the government and the ruling party. If Mr Nariman is correct, the beneficiary of the bias will invite a recommendation, he did not do that and the beneficiary of the bias will have the last word whether bias exist or does not exist. This will be destructive of any form of fair play.

Q: Address yourself to the first rather than the second of the two points that you have just heard from Mr Jaitley. He says that if the government isn't invited to initiate action in the first proviso of article 324-325 then why should the government have to initiate action in the second proviso given that the language in the two provisos is identical isn't it illogical to say that the government has to initiate in the second but clearly the government cannot in the first?

Nariman: I don't think Mr Jaitley is right. It all depends upon who is empowered to remove. The first proviso says that not government but parliament; the second proviso says government. Now that is a fundamental difference and the mere assimilation of the language doesn't make the provision the same. The whole problem arises is that Gopalaswami's complaint - we try to push into the second proviso. It was never intended. As Mr Sibal rightly says, it was meant to be a shield to protect the election commissioner against the vagaries of a government who would otherwise be entitled to remove him. It is that protection that is there but then to say that every situation is covered by the second Proviso I do not agree at all.

Q: It seems that a lot of the argument that Mr Nariman and you are making hinges upon what the intention behind the second proviso of 324-325 was? How do you establish that intention without referring the matter for a conclusive opinion to the SC? You are doing it either on the basis of your understanding which could be fallacious and wrong and subjective or you are doing it on the basis of constitutional debates which certainly aren't definitive, so ought you not to actually refer to the SC to find out how the court to believe this is intended?

Sibal: What Mr Jaitley said trying to compare 324 with the second proviso -the procedure to remove the CEC with the second proviso. In fact even that is not comparable - when you remove a CEC, it is parliament that moves the motion. Then what is the procedure set up under the judges enquiry act because it is the same procedure as removing a judge of the SC. You have to set up a separate independent committee. That independent committee allows evidence to be led, that independent committee then gives the recommendation, that recommendation then comes to parliament. Here it is the CEC who proceeds and who is the judge himself. So none of this filters here so it is completely wrong what Mr Jaitley is saying even that doesn't apply.

Number two - let me tell you the issue is not of intention at all because they have moved a petition in the SC, but the SC has passed an order and we don't opined on the merits of demerits of what the CEC is saying that you allow me to do deal with this matter, we will deal with that later. They have a petition pending, we should go to SC.