Context:The legality of the recent removal of the Andhra Pradesh State Election Commissioner (SEC) through ordinance route is considered to be in serious doubt.
More about the news:
- The move is alleged to be the culmination of an open conflict between the State Election Commissioner and Chief Minister of Andhra Pradesh.
- Postponing of local polls by SEC
- Last month, 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 N. CM, 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 State government got the Governor to issue 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.
- The State government seems to have gone by legal opinion given Allahabad high court in Aparmita Prasad Singh vs. State of U.P. (2007).
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:(Art 243K)
Legal Provisions;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.
Safeguards for the position
Removal :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.
Conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
- 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 may not survive 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.