Context: The AP High Court struck down AP Panchayat Raj Ordinance through which the term of the State Election Commissioner (SEC) was cut short from five to three years in turn expulsion of Ramesh Kumar as State Election Commissioner (SEC).
- The move to cut short the period of SEC was alleged to to be the culmination of an open conflict between the SEC and Chief Minister of Andhra Pradesh.
- Postponing of local polls by SEC
- In March, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
- The State government approached the Supreme Court, but the apex court declined to interfere.
- Allegation of CM of Andhra Pradesh that the SEC, an appointee of his predecessor, postponed the polls to prevent a sweep by the YSR Congress may or may not be true.
- Changing tenure and appointment conditions of SEC by State government:
- The Governor issued an ordinance to cut the SEC’s tenure from five to three years.
- State government also amended the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
- These changes in conditions automatically rendered the state election commissioners continuance invalid.
- Legal opinion given Allahabad high court in Aparmita Prasad Singh vs. State of U.P. (2007): The State government seems to have gone by this judgement.
More on the news:
- A two-judge bench of the court directed the government to reinstate the SEC with immediate effect.
- This leads to the exit of Madras High Court retired judge V. Kanagaraj who was appointed as SEC soon after his predecessor was forced to demit office through the ordinance route.
- The High Court relied upon the SEC's argument that the power conferred under Article 213 of the Constitution to promulgate ordinances was not an absolute entrustment but conditional upon the satisfaction that the circumstances exist for such an action.
- The court also agreed with the view that the impugned ordinance was in violation of Article 243-K which states that a SEC could not be removed except in the same manner as provided for a judge of a High Court.
Road Ahead: Adhering to the norms
- It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
- Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for appointment is bound to succumb to judicial scrutiny.
- Provisions under Article 243K
- As the provisions of Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
- Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.
Aparmita Prasad Singh vs. State of U.P. (2007)
Ruling of the court
- In this case Allahabad High Court ruled that cessation of tenure does not amount to removal
- While citing this high court also upheld the State Election Commissioner’s term being cut short.
- Later the Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.
Controversy regarding this legal opinion
- The judgment seems erroneous, as it gives a carte blanche to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
- This was surely not what was envisioned by the Constitution provisions which contains adequate safeguard for the independence of the State Election Commission.
- If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.
State Election Commissioner
- Article 243K provides for constituting a State Election Commission that will consist of a State Election Commissioner.
- The Commission has been given the responsibility of superintendence, direction and control to conduct all elections to Panchayati Raj Institutions (PRIs) and Municipal bodies in the State in line with articles Articles 243K, 243ZA.
- As per article 243(C3) the Governor, when so requested by the State Election Commission, makes available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred.
- Conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine.
- State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court.
- Note:A judge may be removed from office by the President through a motion adopted by Parliament on grounds of ‘proven misbehaviour or incapacity’.
- Conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
Ordinance making powers of the Governor (Article 213)
- S(He) can issue an Ordinance when one or both Houses of the state Legislature are not in session. The ordinance shall have the force of law.
- S(He)is authorized to promulgate Ordinance when he is satisfied that circumstances exist which render it necessary for him to take action immediately.
- However, S(he) is prohibited from promulgating Ordinances that contain provisions, which under the Constitution require the previous sanction of the President of introduction in the state Legislature or which are to be reserved for the assent of the President.
- In such cases, the Governor can promulgate an Ordinance after obtaining permission from the President.
Term of Ordinance
- An Ordinance issued by the Governor ceases to be in operation six weeks after the assembly of the Legislature unless approved earlier. The Governor may withdraw an Ordinance any time before it expires.