UPSC CSE Mains Syllabus: GS-2- Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
The legality of the removal of the Andhra Pradesh State Election Commissioner (SEC) is seriously in doubt.
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.
Why the contention:
- This is because of the SEC’s decision to postpone the elections to urban and rural local bodies a few days before the polling because of the Coronavirus pandemic.
- The SEC held that the number of patients would flare up if the elections were held at the time.
High Court order:
- On May 29, the High Court had struck down the ordinance promulgated on April 10 by the Y.S. Jagan Mohan Reddy government, curtailing the tenure of the SEC from five to three years.
- It also quashed a Government Order appointing retired judge V. Kanagaraj as the new chief and restored retired bureaucrat Nimmagadda Ramesh Kumar as chief of the State poll panel.
Why did the court struck down the ordinance?
- Under Article 213 of the constitution, the state governments have the power to bring in ordinance, circumventing the normal procedure of bringing a legislation through the assembly.
- The court agreed that the Article 213 was not an absolute entrustmentbut conditional upon the satisfaction that the circumstances exist for such an action.
- The court held that the government could bring an ordinance when immediate action is required in public interest, but it cannot be “allowed to serve political ends, contrary to all democratic norms”.
The court concurred that the ordinance was brought only to appoint a SEC of chief minister’s choice, dismissing the government’s claim that it brought the ordinance as part of local body election reforms and it was not targeted at Kumar.
- The court said that the old rules regarding the tenure and service conditions of the SEC were in vogue for the last 26 yearsand were abruptly changed in “wholly arbitrary, discriminatory and capricious exercise of power contrary to constitutional spirit”.
What the Supreme Court said:
The Supreme Court on June 10 issued a notice to the State Election Commission (SEC) and others on an appeal of the Andhra Pradesh government against the recent High Court order striking down an ordinance. It refused to stay the ordinance.
Powers of the SEC: article 243 k
Elections to the Panchayats 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.
Conditions and Tenure: 243k(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.
Invariable conditions of service: 243k(2)
The conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
- The Governor of a State shall, when so requested by the State Election Commission, make available to the SEC such staff as may be necessary for the discharge of the functions conferred on the State Election Commission.
- 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.
- It cited Aparmita Prasad Singh vs. State of U.P. (2007) in which the Allahabad High Courtruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.
- The Supreme Court, while dismissing anappeal against the order, kept open the legal questions arising from the case.
- In Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad, the Supreme Court directed that state governments should abide by orders of the SECs during the conduct of the panchayat and municipal elections.
- Though the both the judgments are not procedurally wrong, it gives a carte blanche to the State government to remove an inconvenient election authorityby merely changing the tenure or retirement age.
- This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions tosafeguard the independence of the State Election Commission.
- Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to thedetriment of any incumbent.
- Even if the State government argues that a change of tenuredoes 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.
Source:” The Hindu“.
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