Constitutional experts on Saturday attacked Chief Election Commissioner N Gopalaswami's decision to suo motu recommend removal of Navin Chawla as Election Commissioner, saying the move has created a 'crisis' and its timing just ahead of the elections could make people believe there is 'some motivation'.
Noted jurists Fali S Nariman, K K Venugopal and Shanti Bhushan said the CEC move has 'badly hit' the credibility of the poll panel which is 'very unfortunate'.
"There is a crisis created by the CEC. I am a little surprised he did it at the time when he did it. If he had done it a year before, it might have been considered to be a bona fide complaint because he was entitled to his views. But unfortunately he has done it at the time when reasonable ordinary people will believe that there is some motivation behind it," Nariman said.
His views were shared by Venugopal, who said "such a recommendation at the fag end of his tenure is not permissible".
Further, the decision taken by the CEC goes against the 1995 verdict of the Supreme Court in the T N Seshan's case in which the apex court had asserted that "if the power of Election Commission was to be exercisable by the CEC as per his whims and caprice, the CEC himself would become an instrument of aggression and would destroy the independence of the Election Commission," he said.
Bhushan, a former law minister, said Gopalaswami should have written to the government long back and not on the eve of the elections. "At this stage to create a crisis of this kind is wholly improper and the Chief Election Commissioner ought to resign," he said.
On CEC's power on the removal issue, Venugopal said "This power cannot be exercised suo motu (on his own) by the CEC without the reference being made to him for such removal".
Nariman, while maintaining that he has great regard for the CEC, said "it is extraordinary, unfortunate that he has brought the very high office into controversy".
"The timing of this makes me believe that we should now have a constitutional provision giving all the election commissioners the same privileges" whereby they can be removed only by Parliament.
He said it was not binding on the government to accept the CEC's recommendation but a "matter to be seriously considered".
Nariman also referred to the petition filed by the BJP MPs in the Supreme Court seeking Chawla's removal.
In 2006, Leader of Opposition in the Lok Sabha L K Advani and 204 MPs had submitted a petition to then President A P J Abdul Kalam seeking the removal of Chawla as Election Commissioner on the ground of alleged partisanship. The main opposition party also took the matter to the Supreme Court.
Gopalaswami in his affidavit to the apex court had claimed that the CEC had suo motu power to recommend the removal of an Election Commissioner. Following this, the BJP withdrew its petition in the apex court and again took up the issue with the CEC.
Nariman said the Prime Minister and the cabinet will now have to "consider and decide what to do."
He said if Gopalaswami felt that one of his election commissioners ought to be removed, what he could have done is to recommend that when he demits office, Chawla should not be appointed as the CEC.
"The EC has done fantastically good work, applauded all over the world and here we are tearing it apart from within," Nariman said.
