An ordinance to reduce the term of the SEC during pandemic is unjustified, say legal experts
For the first time in the history of the world, the entire humanity is completely immersed in fighting the deadly pandemic caused by the Coronavirus. The mayhem caused by the virus is such that the governments are expected to and most governments are concentrating all their energies in fighting the virus.
Other things, particularly, elections, appointments and removal of election commissioners can and must wait. There is absolutely nothing of such paramount urgency, as to require an ordinance, reducing the term of the State Election Commissioner and bring in a new Election Commissioner.
However, the Government of Andhra Pradesh has done exactly that. It may be recalled here that the AP government issued an ordinance last week removing the incumbent commissioner and appointed Justice (rtd) J Kanagaraju, as the new commissioner
The Andhra Pradesh government justifies this action on the ground that the ordinance is necessary to bring in electoral reforms! That there is an urgency, which cannot brook any delay and the term of office of the election commissioner, must be reduced urgently from five to three years!
According to the Andhra Pradesh Government there is nothing wrong and their action of removing the incumbent election commissioner and bringing in a new election commissioner, completing the entire exercise within 48 hours, in the midst of a pandemic, is Constitutionally valid!
The question is can it be done? And done in the manner in which it is done? Let us briefly examine.
Paradoxically, the foundations for the democratic government were laid by the colonial British. Through the process of elections, a democratic representative government was sought to be established at the National and Provincial levels and even for the local bodies. It was during the 1920s, when Lord Rippon’s ideas were given shape to and local bodies were sought to be established.
The discussion and debate, about its form and structure, which began around that time, continued at an enlightened level during the Constituent Assembly. They chose to have a permanent Commission both at the national and state level.
From the debates of the Constituent Assembly, it would be clear that the framers wanted an Election Commission to be a truly independent body, free from any kind of control or interference from the Executive.
At the time when we are celebrating Ambedkar’s birth anniversary, we could recall his speech at the Constituent Assembly, where he emphasised the pivotal role the Election Commission plays in the electoral mechanism, calling it ‘a piece of independent electoral machinery for the conduct of elections’.
Article 324 of the Constitution of India comprehensively safeguards the independence and impartiality of the Election Commissioner making him free from any kind of control or interference from the Executive by prescribing the service conditions and a fixed tenure.
HM Seeravai in his book Constitutional Law of India, while discussing Article 324 (5) categorically stated that the service and tenure of Election Commissioner are such that he cannot be removed from office except on the recommendation of the Chief Election Commissioner. The intent and language of the framers of the Constitution of India were that the Election Commissioner, must under all the circumstances be independent of Executive discretion. His conditions of service cannot be varied to his disadvantage after his appointment. The protection given is analogous to the security of tenure of the Judges of the High Courts and the Supreme Court.
The Supreme Court had an occasion to deal with Article 324 in the case of TN Seshan vs Union of India. The Supreme Court of India categorically held, among other things, that the Election Commission would be a permanent body and the Election Commissioner could be removed only on the recommendation of the Chief Election Commissioner, like a judge of the Supreme Court, and that the conditions of service could not be varied to his advantage. In other words, the Supreme Court clearly held that the Election Commissioner could not be removed from the office before the expiry of his tenure, except on the recommendation of the Chief Election Commissioner.
Government has no power to remove an election commissioner. It cannot remove an election commissioner by reducing the term of office, as what cannot be done directly cannot be done by indirect methods.
In India and across all the democracies, Election Commissions play a very vital role in the democratic process. In order to play a key role, Election Commissions have to ensure that a truly representative government is in the saddle. It has got a reservoir of powers to act independently without being influenced by the Executive. It is an open secret that the decision of the election commissioner to postpone elections to local bodies, due to pandemic was not palatable to the government and it cannot be the reason to remove the election commissioner by reducing the term of his office, by an ordinance, in the midst of the mayhem created by the pandemic.
In the light of the debates before the Constituent Assembly, the language of Article 324 of the Constitution of India and the judgment of the Supreme Court in Seshan's case, the government of Andhra Pradesh could not have moved at jet speed, while the deadly pandemic is sweeping the state, to bring in an ordinance retrospectively by reducing the term of office the Election Commissioner and ease out the incumbent State Election Commissioner replacing him with a new Election Commissioner.
First, there is no urgency as to require an ordinance.
Second, the tenure of the election commissioner cannot be reduced before his term comes to an end.
Third, such legislation can only be prospective and not retrospective. Such legislation cannot curtail the fixed tenure, Constitutionally guaranteed to an election commissioner retrospectively.
The actions of the government in bringing in ordinance curtailing the tenure of election commissioner is substantively as well as procedurally illegal and ultra-vires the Constitution of India.
The issue is now before the High Court of Amaravati.
(The author is a Supreme Court advocate. He was formerly the president of the Commonwealth Lawyers Association.)