By Shraddha Gome and Harpreet Singh Gupta
Free and fair elections form the bedrock of a democratic state. An essential pre-requisite to the conduct of free and fair elections is an independent and autonomous election commission, which is insulated from executive interference and political pressures. In recognition and furtherance of this, the Constitution of India vests the superintendence, direction and control of conduct of elections to the offices of President, Vice-President, Parliament and State Legislatures in an independent constitutional body i.e. the Election Commission of India [Article 324(1)].
A similar body has been created by the Constitution for conduct of elections to panchayats and other local bodies [Articles 243 K and 243 ZA]. Both the Election Commission of India as well as State Election Commissions enjoy certain constitutional safeguards to secure their independent functioning.
Political parties, by sheer psychology of power, have a tendency to command and control. Hence, the tussle between an independent EC and political parties has been a long drawn out phenomenon. The recent removal of Andhra Pradesh State Election Commissioner via an ordinance is a recent addition.
Before analysing the constitutionality of this move, it is important to understand the factual backdrop as well as the constitutional status of State Election Commission. N Ramesh Kumar was appointed as the Andhra Pradesh State Election Commissioner around four years ago when the Telugu Desam Party (TDP) was in office. His tiff with the Andhra Pradesh government started with his decision to defer the local body elections, amidst the spread of COVID-19 pandemic. Upon its failure to secure a favourable order from the Supreme Court against the deferment, the Andhra Pradesh government of YSR Congress issued an ordinance replacing Kumar. The said ordinance reduced the term of State Election Commissioner (SEC) from five years to three years and altered the qualifications required to be the SEC. Further, the government by issuing certain orders made the ordinance applicable to incumbent SEC as well. The government’s move is a textbook case of colourable exercise of power.
The ordinance route to remove SEC falls foul of both Article 243k and Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994. Article 243K(2) explicitly bars removal of SEC from his office except in like manner and on the like ground as a judge of a high court. Further, it mandates that the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. Section 200 of the Andhra Pradesh Panchayat Raj Act reaffirms the constitutional safeguards laid under Article 243K. In light of these, the government’s move to apply the ordinance amending the SEC’s tenure and qualifications to incumbent SEC may not withstand judicial scrutiny.
In its defence, the government seems to have relied on the Allahabad High Court decision in Aparmita Prasad Singh v. State of Uttar Pradesh (2007) and the Supreme Court decision in State of Himachal Pradesh v. Kailash Chand Mahajan (1992), wherein the court differentiated between cessation of office and removal from office. In our opinion, these judgments offer little defence to government’s action.
The Kailash Chand Mahajan case dealt with removal of member of State Electricity Board (SEB) and cannot be used as a shield to justify removal of SEC. The State Election Commissioner, a constitutional authority enjoying safeguards under Article 243-K, stands on different footing from member of a State Electricity Board. Unlike a member of SEB, the SEC is explicitly protected under the Constitution from being removed except on ground of proven misbehaviour and incapacity like a judge of a high court. Similarly, the conditions of his service cannot be altered to his disadvantage post his appointment. The government’s move to cut short SEC’s tenure violates both these conditions.
Further, the reliance on Aparmita Prasad Singh is erroneous. In this case, the Allahabad HC held that if governor has power to fix or prescribe tenure by rule, he also enjoys the power to amend the rule, either for extending the term of the tenure or reducing the same. Once the prescribed tenure comes to end, incumbent must cease to hold office and this shall not amount to removal from office. The interpretation adopted by the court defeats the fundamental objective behind Article 243-K i.e. insulating election commission from executive excess, as emphasised in the seminal judgment in TN Seshan, CEC v. UOI. If this view is to be adopted, governments can easily get rid off an inconvenient candidate by reducing the tenure and indirectly, removing him, in blatant disregard to Article 243-K. In any case, the decision in Aparmita Prasad Singh had been appealed to Supreme Court which chose to keep this question of law open. Thus, the distinction between cessation of office and removal from office in context of SEC remains a moot point.
Another challenge to the use of ordinance route to cut short SEC’s tenure arises from Article 213 of the Indian Constitution which empowers the Governor (of any state) to promulgate ordinance(s) during recess of legislature “if circumstances exist which render it necessary for him to take immediate action”. One fails to understand the urgency behind reforming the qualifications of the SEC so much so that government could not have waited till the next session of the state’s legislature. Such ordinances, which walk on thin ice both in terms of backing of substantive law and “need for immediate action”, violate the basic tenet of parliamentary accountability.
Thus, the backdoor route adopted by the Andhra Pradesh government in removing an incumbent SEC by reducing his tenure and altering qualifications via an ordinance, not only threatens the institutional autonomy but also falls foul of the constitutional provisions. Robust institutions are key to efficient functioning of democracy and securing their institutional integrity is a task that falls on all three branches —executive, judiciary and legislature.
Authors are lawyers and are alumni of National Law School of India University, Bangalore