ANDHRA GOVERNMENT AND STATE ELECTION COMMISSION

IN NEWS:

• The Andhra Pradesh government brought an ordinance amending the AP Panchayat Raj Act, 1994, changing the tenure, eligibility and method of appointment of the state election commissioner.

THE CONTROVERSY:

• The ordinance came in the backdrop of a reported tiff the Chief Minister had with the SEC after the latter postponed the elections to rural and urban local bodies on 7 March in view of the COVID-19 pandemic.
• The state government subsequently filed a petition in the Supreme Court challenging the SECs decision but the Apex Court only endorsed the deferment of polls.

CHANGES BROUGHT FORTH:

• Earlier, only those above the rank of a principal secretary were eligible to be appointed as an SEC. Under the amended Act, only a person who has held the office of a judge of the High Court will be eligible. Hence, the SEC will be a full-time officer.
• The tenure of five years has been brought down to three with the scope of extension by another three years.

STATE ELECTION COMMISSIONS:

• They are constituted under the 73rd constitutional amendment act, 1992.
• They are vested with the powers of conduct of elections to the Corporations, Municipalities, Zilla Parishads, District Panchayats, Panchayat Samitis, Gram Panchayats and other local bodies.
• They are independent of the Election Commission of India.

COMPOSITION:

• It consists of a state election commissioner to be appointed by the governor. His conditions of service and tenure of office shall also be determined by the governor.
• He shall not be removed from the office except in the manner and on the grounds prescribed for the removal of a judge of the state high court. This means that a state election commissioner cannot be removed by the governor, but only through an impeachment process by the parliament.
• His conditions of service shall not be varied to his disadvantage after his appointment.

CRITICISM:

• Violation of Article 243K: The article prohibits the variation of any condition of service to the disadvantage of the commissioner. However, the ordinance has led to the termination of the existing commissioner before completion of his term.
• Undermines the institution: The ordinance encroaches upon the independence of the Constitutional body, especially in the light of political accusations. This could pave the way for other states to follow the same path in case of disagreement with their commissions and thereby undermine the principle of free and fair elections. 
• Bypass of constitutional safeguards: As per the Constitutional provisions, only way to remove the SEC before the term is ended is by impeachment. However, the Government chose to reduce the commissioner’s term from five years to three years, resulting in cessation of his office. Thus, what is directly prohibited by the Constitution has been done by the Executive of the AP indirectly.
• Due Process of Law not followed: The government kept the ordinance and consequential orders secret till new incumbent has joined office. The government also did not give reasons for its sudden decision to promulgate the ordinance.

CONCLUSION:

• The issue is not about the service rights of the expelled commissioner, but about immunizing the office of SEC from political interference and threats.
• The ordinance is now under challenge before the AP High Court, who gave four weeks of time to Government to answer the petitions.
• The removal of an incumbent SEC through the subterfuge of changing the eligibility norms for appointment may not survive judicial scrutiny. However, if courts uphold this means of dislodging, it would seriously dent the ideal of free and fair elections.

PRACTICE QUESTION:

Q. Governance through ordinances poses a threat to the autonomy and independence of constitutional bodies. Discuss in the light of recent events?