Lack of proof, high constitutional bar: Why CEC Gyanesh Kumar’s removal bid was rejected

RAjya Sabha chairman CP sarvepalli radhakrishnan and Lok Sabha verbaliser Om Birla feature rejected the oppositeness’s note against Chief Election Commissioner (CEC) Gyanesh Kumar arguing that the allegations lack necessary proof, have already “been decided” or are currently under judicial review.Their separate but similar orders, both 17 pages long, circulated to lawmakers concludes that while the “ allegations are relevant for political debate, they do not prima facie meet the high constitutional bar for removal proceedings.”Lok Sabha Speaker Om Birla too, issued a similar order.The presiding officers of the two houses said that given the Election Commision’s unique constitutional role, “any proposal for the removal of the CEC must be examined with utmost care and circumspection, striking a careful balance between preserving the institutional independence of the commission and the right of members to initiate a motion”. It added that for such a motion to be admitted, there would need to be “credible material disclosing a prima facie case”. Also Read | Lok Sabha, Rajya Sabha reject Opposition's notices seeking removal of CEC Gyanesh Kumar‘Does not envisage misbehaviour’And it warned that admitting a motion “based on administrative disagreements or political perceptions” would jeopardise the poll body’s “independence”. The order reasoned that the “ notice does not demonstrate “misbehaviour” as envisaged by Articles 324(5) and 124(4) of the Constitution.The two presiding officers focused on the constitutional and legal provisions vis-à-vis the allegations of “misbehaviour” levelled at Kumar, the first CEC to face an impeachment notice.TMVC’s Derek O’Brien said, “All the non-BJP parties, the like-minded parties, we are in touch with each other and very soon we will come back to you and share our thoughts on this.” Independent MP Kapil Sibal questioned if it is Radhakrishnan’s domain to decide the case as a quasi-judicial authority.Responding to the first charge that Kumar’s appointment as CEC was compromised — the allegation was that the Leader of the Opposition had dissented over Kumar’s appointment and that before becoming CEC, Kumar served in senior positions in the administration, revealing his “deep institutional embeddedness within the Executive” — the order stated that the “allegations, even if presumed to be factually correct, do not amount to any act of misbehaviour attributable to the CEC.”The order added that a court case is pending over Kumar’s appointment and the Supreme Court has not provided any interim relief or stayed the application of any provision of the law on how CECs are appointed. It said that Kumar “has no individual role in the proceedings of the Selection Committee” and that “prior service in government, by itself, cannot be construed as indicative of bias.”“It is an undisputed fact that the overwhelming majority of CECs since 1950s have served in government before their appointment as CEC, and such experience has never been treated as a ground for presuming partiality.”Also Read | Exclusive: Why Radhakrishan, Birla, rejected impeachment notice against CEC Kumar‘Partisan conduct’The second allegation related to Kumar’s statements concerning allegations of irregularities in preparation of electoral rolls. It said the CEC applied different yardsticks to members of two different political formulations — a likely reference to Kumar aggressively responding to allegations of misconduct.The order said that “if any allegation is made with regard to the functioning of the Chief Election Commissioner or any other Members of the Commission, it is desirable that such allegations or misgivings are dealt with during periodic press conferences which have been taking place for several decades”.It added that while there could be “differences of opinion on the appropriateness of such responses, in the absence of clear and demonstrable evidence of abuse of authority or unlawful conduct” this “cannot amount to misbehaviour so as to warrant his removal”‘Obstruction of probe’The third allegation was that ECI, under Kumar, did not cooperate into an investigation on electoral fraud. “In this context, it is a well settled proposition that once a legal process is set in motion through the registration of an FIR, the appropriate recourse for the aggrieved parties or the investigating authorities lies in approaching the competent court or appellate forum for relief in accordance with law. Mere initiation of such legal proceedings in itself, cannot, by any stretch of reasoning be construed as constituting ‘misbehaviour’ on the part of the CEC,” the order reasoned.Also Read | Exclusive: EC chief Gyanesh Kumar promises level playing field as five states prepare to voteBihar SIRThe fourth allegation, related to the SIR of electoral rolls in Bihar was also rejected on the ground that “Under Article 324(1) of the Constitution, the ECI is vested with the plenary authority to supervise and direct, inter-alia, the preparation of electoral rolls”. The order pointed out that the Supreme Court had looked closely at the SIR process. “Issuance of certain observations or directions by the Court, aimed at enhancing transparency, accessibility, and procedural fairness, cannot, by any reasonable standard, be construed as indicative of ‘misbehaviour’ on the part of the CEC. Such judicial engagement is intrinsic to constitutional oversight and does not, in itself, imply any wrongdoing,” the order said.Pointing out that the court is yet to issue its final judgement, the order said that “any attempt to draw adverse conclusions or attribute misconduct at this stage would amount to a premature and unwarranted pre-emption of the judicial process” .Expansion of SIRThe fifth charge related to the nationwide expansion of SIR and purported political consequences of such action. The order observed that the poll body is constitutionally mandated to“undertake revision of electoral rolls and ensure its correctness” and seeing this as “disadvantageous to a particular political spectrum is at most a matter of subjective opinion and cannot, in itself, furnish a valid ground for alleging misconduct”.“It is important to underline that proceedings for removal, particularly in respect of a high constitutional office, cannot be founded on vague and subjective apprehensions or perceived political outcomes, but must rest on clear, specific, and sustainable grounds. Thus, the impugned assertions, being inherently speculative and conjectural, do not, prima facie, meet the threshold required to establish “misbehaviour”,” it said.Also Read | Raghav Chadha on why he did not sign notice to impeach CEC: ‘Why blame me?’Contempt of courtThe sixth allegation was over non-compliance with the Supreme Court’s directions relating to electoral roll revisions. The order reasoned that “ in judicial proceedings, particularly those involving the constitutional rights of citizens to be included in electoral rolls, the Court may issue interim directions which are binding on all concerned parties”. It added that refusal to follow these “ is appropriately addressed through the Court’s established contempt jurisdiction. In this backdrop, the present charge fails to disclose any prima facie case of “misbehaviour”.”'Independence and constitutional fidelity'The seventh allegation is that there has been a failure on the part of the Election Commission of India to maintain independence and constitutional fidelity after Kumar took over.The order found this allegation to be “couched in broad, generalized, and inferential terms” and “lacking any specificity”.