Another Challenge to Independence of Constitutional Institutions: Can AP Government Remove Election Commissioner?

Andhra Pradesh Ordinance on term of SEC is now under challenge before the bench headed by Chief Justice Maheswari, of AP High Court, who gave four weeks of time to Government to answer the petitions filed by N Ramesh Kumar, 'removed' SEC and others.

A serious Constitutional controversy is kicked off by the AP Government, which used its extraordinary power through promulgation of ordinance to get rid of Nimmagadda Ramesh Kumar as State Election Commissioner, around 8 months in advance. Can the AP Council of Ministers led by its Chief Minister Y S Jaganmohan Reddy, recommend the Governor to promulgate an ordinance which is blatantly violative of Article 243-K of the Constitution seriously undermining the independence of the State Election Commission which might compromise the fairness of elections to local bodies which is now pending? How could the Governor of AP simply promulgate the ordinance showing Nelsons' Eye to a significant article 243 K?

If the AP Government does not want AP State Election Commissioner Nimmagadda Ramesh Kumar to continue in his office, only recourse left to them is to prepare for impeachment in the same lines of impeaching the High Court Judge. Without removing him as provided under 243-K of the Constitution and adhere to norms affirmed under Section 200 of AP Panchayati Raj Act 1994, the Government chose to reduce his term from five years to three years, resulting in cessation of his office.

What is directly prohibited by the Constitution has been done by the Executive of the AP state by indirectly removing him. Thus, the ordinance strikes fatally at the independence of the State Election Commission and creates doubts on the sincerity of Government in conducting elections in free and fair manner. Free and fair election is the basic structure of our constitution.

Surprisingly, the AP Government followed the opaque policy. It has kept 'ordinance' and consequential GOs and everything about them secret till new incumbent has joined office. The meaning of this ordinance amending the AP Panchayati Raj Act 1994, is mere removal of the present State Election Commissioner N Ramesh Kumar, when the process of Election is going on, before end of his five-year term. Article 243(K) says,

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 and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment."

As per this Constitutional provision, only way to remove the SEC is by impeachment before the term is ended. However, term of SEC can be truncated by amending the law, which cannot be disadvantageous to existing Commissioner. The AP Ordinance amending AP Panchayat Raj Act 1994 reduces the term from 5 years to 3 and this was made applicable to SEC N Ramesh Kumar, who completed four plus years in office.

Is it not unconstitutional?

The basic purpose of giving fixed tenure of five years and making removal process difficult is to secure the independent position of SEC from the whims and fancies of newly elected Government. If actions and decisions of the office holders are adverse to their interests, rulers prefer to remove them from such position either by transfer, or removal.

Media reported that department of law and the Chief Secretary warned the government of breaching Article 243 (K) but interpreting two decisions of the SC in their favour, the Government has resorted to this ordinance. The Government is trying to defend Ordinance saying that its main aim was to bring in electoral reform to ensure neutral, fair and independent SEC, hence, it cannot be considered unconstitutional. It is also reported that the HC verdict in the Aparmita Prasad Singh vs State of UP and SC judgment in Kailash Chand Mahajan were used to support their point.

Kailash Chand Mahajan was Chairman of State Electricity Board, who was removed from office by amending statute to reduce the term. In State of Himachal Pradesh v. Kailash Chand Mahajan (https://indiankanoon. org/doc/311809/ decided in 1992) Supreme Court held that reduction of tenure of service amounts to cessation and not removal. The AP Government is trying to justify that Ramesh Kumar was not removed but just his term was shortened and hence he must step out. Whether Kailash Chand Mahajan's rule applies to State Election Commissioner's removal also, who is protected by a Constitutional provision Article 243K?

The AP Government heavily depending is Allahabad High Court's judgment in Aparmita Prasad Singh versus State of Uttar Pradesh decided on 23.8.2007. Aparmita was State Election Commissioner in UP during the rule of Mulayam Singh Yadav. He was appointed during Mayavati's rule. Originally in 1994 the term of SEC was five years or 65 years of age, whichever is earlier. The Rules were amended in 2006 extending the term to 7 years and 67 years of age. After change of guard the new CM did not like the way SEC questioned the transfer of several officers during the local body elections. Then the Government amended the service conditions and amended the Rules in 2007 restoring 5-year-term and 65 years of age. Every amendment was made applicable to present SEC, Aparmit. The amendment to Rules in 2006 was valid because the change was not disadvantageous to petitioner as SEC. But changed Rules 2007 cannot be valid because of being disadvantageous to him. Aparmit challenged this change and contended that it was his removal in glaring breach of Article 243K. Allahabad High Court agreed with the UP government and did not give any relief to SEC saying he has attained age of 65 by that time though 2006 Rules permit him to continue up to 67 years of age.

In Kisansing Tomar's case the SC held 2005 (https://indiankanoon.org/doc/1736371/) that the State Election Commission is vested with the same power as the Election Commission of India possesses and the provisions contained in Art 243-K are pari materia and it is the duty of the ECI and the SEC to conduct election in a just and fair manner. The EC must discharge its constitutional obligation independently and effectively without being influenced by political party in power or the executive. Free and fair election is the basic structure of our constitution. The purpose of Art 243-K is, not only the ECI but also the SEC should discharge its constitutional obligations independently without fear of hanging sword on their head.

In Mohinder Singh Gill and another v The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405 the Supreme Court considering scope and ambit of Article 324 of the Constitution of India, observed:

"Elections supply the visa viva to a democracy. It was therefore deliberately and advisedly thought to be out paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be complete charge of the entire electoral process commencing with the issue of the notification by the President to the final declaration of result…."

The apex court also agreed that the EC is a high-powered and independent body which is removable from office except in accordance with the provisions of the Constitution relating to the Judges of Supreme Court and intended by the framers of the Constitution to be kept completely free from pulls and pressures that may be brought through political influence in a democracy run on party system. Once appointed by the President, the Election Commission remains insulated from extraneous influences and that cannot be achieved unless it has an amplitude of powers in the conduct of elections, or course, in accordance with the existing laws.

In TN Seshan v Union of India (1995) 4 SCC 611, the Supreme Court observed that two limitations – removable by legislature, and conditions of service shall not vary to his disadvantage after his appointment- are intended to protect the independence of the Chief Election Commissioner from political and/or executive interference. It further stated:

The provision that the ECs or RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendations of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendations of the CEC…..That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realize that this check on the executive's power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body".

Three tier Indian federation suffers because of over-concentration of authority in State Executive, who after assuming power invariably reduces the term of other constitutional functionaries, office bearers of local bodies and corporations on one or the other ground. Whether Art 243K should be interpreted in such a manner which should not defeat its very purpose to provide independence to the SEC?

The Allahabad High Court ignored all these basic principles of securing independence of the office of SEC, the specific provisions of Article 243K and judicial dictum of the Supreme Court in MS Gill and TN Seshan cases. It has depended on literal interpretation of 'conditions of service' and 'term of office' as per General Clauses Act and concluded that cessation office will not amount to removal to validate the removal through indirect means of reduction of term. Similarly, the HC overlooked the dangerous effect of validating the pulls and pressures of political government over independent office of SEC by interpreting that term of office is not 'condition of service' hence term of office can be altered even if it adversely affects the existing SEC.

While accepting the immunity of SEC and similar constitutional bodies, the Allahabad High Court totally departed from this objective and refused to give relief to the petitioner Aparmit. This was taken in appeal and the Supreme Court summarily dismissed by single sentence judgment saying 'need not interfere with HC judgment'. As the order of SC was not based on comprehensive hearing on merits, it cannot be a precedent. Allahabad HC order, though not in tune with objective of securing independence of SEC, has legal sanctity as precedent but only limited to Uttar Pradesh. It does not prevail over the Andhra Pradesh and its High Court.

Kailash Chand Case, is about reduction term of Himachal State Electricity Board which is not by Article 243-K that has limited the powers of legislature to amend. Removal co-relates with the reduction of tenure. Whether it is cessation or removal in pursuance to the power conferred in Art 217 of the Constitution, the outcome of both the process is the same, i.e., SEC shall cease to hold office.

Jaganmohan's Government has a duty to prove that there are no mala fides in making this ordinance. There are several reasons which might establish political mala fide. 1. The SEC had been targeted and criticised on caste and linking him with Telugu Desham party. 2. The decision of SEC to defer elections was not liked by the Government, Chief Minister and his Ministers. This is evidenced by the language used by them in press conferences. 3. One cannot conclude that decision to postpone elections was not correct because the Supreme Court agreed with the reasons quoted by Ramesh Kumar in a recent decision. 4. Article 243-K specifically grants the full term to SEC and immunity from political removal by the new government. 5.Any Government does not possess the power to reduce the term or change service conditions to the detriment of the persons in the office. 6. When the process of elections is continuing and another phase is pending to be completed, the SEC cannot be removed. 7. What cannot be done directly cannot be done indirectly also. State cannot remove the SEC before the term is completed.

Pre-Legislative Consultation Policy is totally ignored. Obligation to disclose entire information as to what was the urgent need to promulgate ordinance, why it did not wait for Assembly to be convened, what was the urgent need to reduce the term of State Election Commissioner, i.e., sudden removal from service, why it was done when the process of election began, continuing and awaiting the last phase, as it was deferred due to spreading of 'coronavirus'.

And why the entire text of Ordinance is kept secret for a long time? Why were not all material that led to this Ordinance and GOs kept in public domain? Similarly, Governor of Andhra Pradesh also must answer these questions. What made him to sign this Ordinance? Did he enquire into the urgency and whether 243K is examined?

If the Government thinks Ramesh Kumar is biased, that could be a misconduct and it should prepare to impeach him preceded by an inquiry by the committee appointed by SC, to also verify also the grave allegations by Ramesh Kumar of gross violence indulged by the ruling party to prevent the opposition from filing nominations and forcing the unanimous elections in many seats, in his letter to centre seeking protection of Central forces.

The issue is not service rights of Ramesh Kumar, but it is about the immunising the office of SEC from political interference and threats. One has to wait for the judgment of the AP High Court regarding the fate of State Election Commission.

Views are personal

Author is a former Central Information Commissioner