By Guest Blogger: Manoj Mitta

In the controversy over whether the Chief Election Commissioner was empowered to make a suo motu recommendation against an Election Commissioner, one interesting background detail that has gone unnoticed is Navin Chawla’s flip-flop before the Supreme Court. What has come out is that Chawla and the government believe that CEC N Gopalaswami was wrong in assuming a suo motu power to recommend his removal. This is recorded even in the August 7, 2007 order of the Supreme Court permitting BJP leader Jaswant Singh to withdraw his writ petition in the wake of Gopalaswami’s affirmation that he had such a suo motu power. What has however been overlooked is that in the same case, Chawla had earlier taken a stand very similar to Gopalaswami’s on this crucial issue.

In his written arguments, settled by his senior advocate Ram Jethmalani, Chawla actually said that CEC had suo motu powers to make a recommendation against him. He made such an admission to the court in a bid to take advantage of the previous CEC B B Tandon’s reluctance to hold an inquiry against him on the basis of a copy of the memorandum signed by 205 MPs but addressed to the President. Chawla contended that if there was any material against him, Tandon would have made a recommendation for his removal.

Consider this excerpt from Chawla’s written arguments to the Supreme Court: “The Chief Election Commissioner knowing from his personal knowledge that an Election Commissioner is unfit to hold that office must be thoroughly incompetent or corrupt himself if he takes no action at all. The assertion of Respondent No 3 (Tandon) that he would not have taken action unless his comments were called for by the President is wholly untenable. It is intended to get over the tale tale (sic) fact that Mr Tandon continued to be in office for more than a year after the memorandum reached him and yet he took no action of any kind. It only means that the conduct of this Respondent (Chawla) was totally proper and called for no adverse comments or report.”

Chawla changed his mind after Gopalaswami, departing from his predecessor’s stand, had indicated that he did have suo motu powers to recommend the removal of an EC. Though the motive behind his volte face is obvious, it is disturbing that on such a sensitive issue Chawla could swing either way depending on the stand of the incumbent CEC. Had the Supreme Court not allowed him and his counsel Jethmalani to get away with such a cavalier behaviour, the nation would probably have been spared the constitutional crisis that erupted so close to the forthcoming general election.

PS: Another possible goof-up by the Supreme Court in the Chawla matter.