Former Attorney General Mukul Rohatgi said on Friday that there is no constitutional basis for the Opposition's proposed move to try and impeach Chief Election Commissioner (CEC) Gyanesh Kumar, arguing that disagreements within the three-member Election Commission (EC) are actually a healthy sign of democratic decision-making.
"The answer is an emphatic no. No impeachment motion can be moved on these kinds of allegations which are completely vague and which are bereft of any strong facts or reasons," Rohatgi told NDTV's Shiv Aroor in an exclusive interview.
The Opposition is preparing a fresh notice seeking Gyanesh Kumar's removal, following a report by The Indian Express that the two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, sent 14 administrative notes to the CEC and wrote to the Cabinet Secretary raising objections to processes and decisions.
Referring to that news report, Rohatgi said such notes were internal and could not form the basis of a removal case because the commission decides by majority. "Finally, if the EC issues a unanimous order, then it means that the discordant notes have been synchronised and have been ironed out," he argued.
He said the CEC had no greater say than the other two members. "The CEC is only one amongst the three. [CEC's vote] is equal to the other two votes," Rohatgi said. The EC, in a statement, said all its decisions had finally been unanimous.
Rohatgi also addressed the two Election Commissioners' writing to the Cabinet Secretary over internal disagreements reportedly over assignment of some work. "This is a misunderstanding by the ECs of their constitutional position. They are a constitutional body," he said. "The cabinet secretary is the head of the executive and the bureaucracy. What role does he have to play? It's completely wrong."
He questioned how the notes became public: "God knows who leaked it. God knows how much it is correct. God knows why they wrote to the cabinet secretary."
Comparing the EC with multi-judge benches of the Supreme Court, Rohatgi said judges often disagree during hearings but deliver unanimous verdicts. "You have to go by the final official outcome," he said.
"There are cases and cases where the Chief Justice is in a minority, and the other judges overrule the Chief Justice... That doesn't mean that the Chief Justice has committed misconduct," he added, pressing the point that there were no grounds for impeachment.
He said minority views are sometimes vindicated later. "Take the most classic case, the Emergency case, where Justice HR Khanna was in a minority. But posterity finally said that he was right and the majority was wrong." Justice Khanna was the lone dissenting judge in the 1976 case in which a five-judge Constitution bench held that citizens could not approach courts to enforce the right to life and personal liberty during the Emergency, imposed by the then PM Indira Gandhi from 1975 to 1977. A nine-judge bench overruled the majority verdict in 2017.
"Dissensions and discordant notes are a bedrock of democracy. It is healthy democracy," Rohatgi said.
He rejected the need for an inquiry committee, too, into the EC matter. "What is there to inquire when I am telling you that the commission is speaking officially in one voice; there may be internal dissensions," he said.
Asked about the EC's statement, in response to the Express report, not carrying the signatures of the three commissioners, Rohatgi said even orders are authenticated by officials as per business rules. "It does not mean that an order issued by the EC, under the signatures of a joint secretary, is the view of the joint secretary," he said.
On remarks by Rahul Gandhi, Leader of the Opposition in the Lok Sabha, that the EC and other institutions had been "destroyed", and the call for Kumar to "turn approver", Rohatgi responded, "I think it is a complete misunderstanding of the law. The politicians are entitled to say what they want to say... But as a matter of law, there is no real basis for any of this."
Rohatgi said Election Commissioners should record disagreements on official orders. "If the two ECs are dissatisfied with the view taken by the CEC, they should openly come out and record their dissent, and it will become 2:1, and we carry on with our work."
"Suppose two say that this SIR is not correct, then the SIR will fail," he said, referring to the Intensive Revision of voter rolls that has removed around 14 per cent of voters from the rolls nationwide and led to an uproar.
He described the controversy as "a mountain out of a molehill".
Under Article 324(5) of the Constitution, the CEC can be removed only in the manner and on the grounds applicable to a Supreme Court judge. This requires a motion passed by both Houses of Parliament by a majority of the total membership and a two-thirds majority of members present and voting, on grounds of proved misbehaviour or incapacity.
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