State Election Commission: Threat to its Independence 

POLITY/ ETHICS

Topic: General Studies 2 & 4:

• Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies 
• Philosophical basis of governance and probity 

State Election Commission: Threat to its Independence 

Context: AP government brought in an Ordinance on April 10th 2020 which led to removal of incumbent State Election Commissioner(SEC)

About State Election Commissioner

• Under 73rd  and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities
• He/She is appointed by the Governor
• His conditions of service and tenure of office shall also be determined by the governor.
• SEC shall be removed from his office in the same manner & ground as a Judge of a High Court
• A judge of a high court can be removed from his office by the President on the recommendation of the parliament

Brief background of the tussle between AP State Government & SEC

• SEC had postponed the local body elections (to be held on March 15th) citing the COVID-19 outbreak. 
• AP State government has criticised that SEC did not consult the government while postponing elections 
• AP State government appealed the decision in SC but the court refused to interfere
• AP CM also alleged that SEC (appointed by previous government) was acting in nexus with the opposition, to prevent the victory of his party in elections, by postponing it.

What were the major changes that was brought through the Ordinance?

• It reduced the SEC’s tenure from five to three years
• The criterion for holding SEC office was amended – Only those who served as a High Court judge could occupy the post (earlier it was an officer of the rank of Principal Secretary & above)

Consequence of the Ordinance: 

• Incumbent SEC Mr. Ramesh Kumar – a civil servant and 2016 appointee- was no longer the SEC 
• Justice Kanagaraj took charge as new SEC

Criticisms of the Ordinance

• Misuse of power by AP CM– with the intention to remove incumbent SEC 
• Against Article 243K – The article prohibits the variation of any condition of service to the detriment of any incumbent
• The ordinance amounts to encroaching upon the independence of the Constitutional body, especially in the light of political accusations made against SEC
• Due Process of Law not followed: government did not give reasons for its sudden decision
• Danger to Democracy: If the Courts upholds this ordinance then it will be end of free & fair elections 
• Legality of the Ordinance: State government 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.

What was the basis on which AP issued the ordinance?

• In Aparmita Prasad Singh vs. State of U.P. (2007), the Allahabad High Court ruled that cessation of tenure does not amount to removal and upheld the SEC’s tenure being cut short.
• The Supreme Court dismissed the appeal of judgment of HC in this case

Critical Analysis of Aparmita Prasad Singh Case

• The HC judgment seems erroneous, as it gives a complete freedom to the State government to remove an inconvenient SEC by merely changing the tenure or retirement age.
• Against Legal Principles: It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
• Scope for revision: Even though SC dismissed the appeal, it has kept open the legal questions arising from the case

Way Forward

• The government should have waited for the COVID-19 crisis to be over for promulgating such Ordinances
• The new norm should only apply to the successor SEC, and not the one currently holding the office.
• Governments should ensure the independence of elections authorities 

Connecting the dots:

• State Finance Commission
• 73rd and 74th Constitutional Amendment Acts – Critical Analysis