Sacking by subterfuge: on removal of AP top election official

Removal of A.P.’s top election official through ordinance route is a case of abuse of power

Published - April 14, 2020 12:05 am IST

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 , N. Ramesh Kumar, and Chief Minister Y.S. Jagan Mohan Reddy makes it a glaring instance of misuse of power. 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 Mr. Kumar’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. Mr. Reddy’s allegation that the SEC, an appointee of his predecessor N. Chandrababu Naidu, postponed the polls to prevent a sweep by the YSR Congress may or may not be true. However, 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.

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. 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.

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