Sacking by subterfuge: on removal of AP top election official | The Hindu

Context: Andhra Pradesh (AP) State Election Commissioner (SEC) has recently appealed AP High Court to decide upon the constitutional validity of Andhra Pradesh government’s ordinance and orders lowering his tenure from 5 years to 3 years and appointing a retired judge of Madras High Court as new SEC of Andhra Pradesh.

Background:

• On 30 January 2016, governor of Andhra Pradesh appointed N. Ramesh Kumar as State Election Commissioner (SEC) for a period of 5 years as per his power under Article 243K of the Indian Constitution.
• On 15 March 2020, State Election Commissioner (SEC) delayed local body elections in Andhra Pradesh until six weeks due to COVID-19.
• On 10 April 2020, the governor issued an ordinance to lower SEC’s tenure from 5 years to 3 years and appoint a retired HC judge as SEC by amending the rule allowing only Principal Secretary rank officer as SEC of Andhra Pradesh.
• On 11 April 2020, V. Kanagaraj, who is a retired HC judge, became SEC of Andhra Pradesh.
• On 12 April 2020, N. Ramesh Kumar appealed AP High Court to decide upon the constitutional validity of Andhra Pradesh government’s ordinance and orders lowering his tenure and appointing a retired judge of Madras High Court as new SEC of Andhra Pradesh.

Questions being raised over Andhra Pradesh government’s action to remove SEC through ordinance: There are questions over Andhra Pradesh government’s action to remove SEC through ordinance because of conflict between AP government (CM) and SEC. Andhra Pradesh Chief Minister has alleged that SEC deferred the elections to prevent his party from winning in elections. The government has also moved Supreme Court against SEC’s order. But, SC did not interfere in the matter.

Argument against Andhra Pradesh government’s action to remove SEC through ordinance: Andhra Pradesh government’s action to remove SEC through ordinance is equal to misuse of power as neither CM nor the governor is permitted to remove SEC through any mechanism. Andhra Pradesh government’s action is also against constitutional provisions. As per the Constitution of India, SEC can be removed by President only. Article 243K of the Constitution says that the manner and grounds for removal of SEC should be similar to that of a High Court judge. Article 243K of the Constitution does not allow the change in conditions of SEC’s service to bring him disadvantage after his appointment. But, the government had appointed a new SEC by changing the rules for appointment and tenure even when the current SEC was already in office. The government should have made new rules only after the end of tenure of the current SEC.

Argument to support Andhra Pradesh government’s action to remove SEC through ordinance: Andhra Pradesh government’s action to remove SEC through ordinance can be supported with the help of Allahabad High Court’s ruling in Aparmita Prasad Singh vs. State of U.P. (2007) case. In Aparmita Prasad Singh vs. State of U.P. (2007) case, Allahabad High Court agreed that the government’s decision to lower SEC’s tenure is correct and reasonable. The HC said that lowering of tenure is not equal to the removal of SEC. An appeal against this order of Allahabad High Court was dismissed by Supreme Court. But, the ruling is erroneous as it gives state government absolute authority over the removal of SEC even though the Constitution does not provide for absolute authority to state government or governor.

Conclusion:

Government should not have lowered term of current SEC and changed rules for appointment of SEC through ordinance from the governor. If Andhra Pradesh High Court rules in favour of government action to reduce term of SEC through ordinance, the ruling will negatively affect SEC as an authority responsible for and fair local elections.