Amidst the coronavirus crisis, the Andhra Pradesh government has triggered a political row by removing State Election Commissioner (SEC) N Ramesh Kumar through the Panchayat Raj (second amendment) Ordinance 2020. The unceremonious sacking of the officer prompted the Opposition party, Telugu Desam Party (TDP) to term the action as a ‘political vendetta.’
Politics aside, the government’s ordinance has been contested by many, questioning its constitutional validity.
Under the amended Andhra Pradesh Panchayat Raj Act, 1994, an SEC shall hold the office for a three year term and shall be entitled for reappointment for another three years. However, the government did not extend the tenure of Ramesh Kumar, who had completed his three-year term.
The ordinance instead mandates that only a person who has served as a judge of the High Court shall be appointed as the SEC. The Ordinance was signed by Governor Biswabhusan Harichandan, thereby terminating the services of the retired IAS officer with immediate effect on Friday.
Speaking to #KhabarLive, constitutional expert Subhash C Kashyap said, “The State Election Commissioner comes under the state, and each state has its own rules. Ordinances can be passed when the legislature of the state is not in session, and the ordinance has to be produced in the Assembly when the session resumes. The ordinance is therefore valid.”
Just a couple of days before the lockdown was imposed in the state, the government and the State Election Commissioner had locked horns over the latter’s decision to not conduct the Municipal elections, in view of the coronavirus pandemic. Infuriated by this, the ruling party YSRCP approached the Supreme Court. However, the verdict came in favour of the SEC.
Chakshu Roy of PRS Legislative Research says Andhra Pradesh government should explain why this ordinance was needed at this point of time. “Under the Panchayat Raj Act, states have their own law with respect to State Election Commissioners. However, any decision which impacts elections should ideally be done through deliberation in the legislature rather than through the governments law making power of an ordinance.”
Though commenting that legality of an ordinance will be decided by a court of law, Chakshu observed, “Under the present circumstances, the health crisis is a priority. On any occasion an ordinance is never good. It should be used only during an emergency. The government owes an explanation on why they used the ordinance during this crisis, rather than getting it passed through the assembly.”
Umesh Chandra PVG, a practicing advocate from the Telangana Court, calls the ordinance completely unconstitutional. Umesh said, “The State Election Commissioner was appointed by the Governor by exercising his powers conferred under Article 243 K in 2016 and he has 5 years of tenure in office. His tenure is protected by Article 243 K (2) and it cannot be altered to his disadvantage.”
Terming the sacking of the retired IAS officer as ‘grossly unfortunate’ and ‘categorically unconstitutional,’ he said, “The argument that Article 243 K(2) protects only service and not tenure looks preposterous for the simple fact that the foregoing words in the same Article categorically state the SEC’s removal should be synonymous to that of a High Court Judge. Therefore, what cannot be done directly cannot be done indirectly as well.”
Article 243 K (2) states: “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.” #KhabarLive