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SACKING BY SUBTERFUGE: REMOVAL OF A.P.’S TOP ELECTION OFFICIAL

Why in news?

The legality of the removal of the Andhra Pradesh State Election Commissioner (SEC) is seriously in doubt. That it was the culmination of an open conflict between the Election Commissioner, and Chief Minister makes it a glaring instance of misuse of power.

Background

  • The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years, and amend 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.
  • This automatically rendered SEC’s continuance invalid.
  • 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 court declined to interfere.
  • Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
  • The State government seems to have gone by legal opinion that cited Aparmita Prasad Singh vs. State of U.P. (2007) in which the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.

Significance of the issue

  • The Chief Minister has no legal right to terminate the SEC’s tenure, as the Constitution makes the holder of that post removable only in the same manner as a High Court judge.
  • If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

Constitution on such an issue

  •  The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.
  • 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 Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
  • 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.
  • Further, the Constitution, under 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.

Article 243K : Elections to the Panchayats

(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the 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 and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause ( 1 )

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats

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September 2022
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