Context:
The Andhra Pradesh High Court has struck down an Ordinance promulgated by the AP government to curtail the tenure of the State Election Commissioner (SEC).
The court also quashed an order appointing retired judge as the new State Election Commissioner and reinstated post of SEC to previous SEC
Earlier, the state government had promulgated an ordinance to curtail the tenure of State Election Commissioner from five to three years.
Free and fair elections form the bedrock of a democratic state:
- An essential pre-requisite to the conduct of free and fair elections is an independent and autonomous election commission, which is insulated from executive interference and political pressures.
- In recognition and furtherance of this, the Constitution of India vests the superintendence, direction and control of conduct of elections to the offices of President, Vice-President, Parliament and State Legislatures in an independent constitutional body i.e. the Election Commission of India [Article 324(1)].
- A similar body has been created by the Constitution for conduct of elections to panchayats and other local bodies [Articles 243 K and 243 ZA].
- Both the Election Commission of India as well as State Election Commissions enjoy certain constitutional safeguards to secure their independent functioning.
- Political parties, by sheer psychology of power, have a tendency to command and control. Hence, the tussle between an independent EC and political parties has been a long drawn out phenomenon.
- The recent removal of Andhra Pradesh State Election Commissioner via an ordinance is a recent addition.
About State Election Commissions (SECs):
The State Election Commission has been entrusted with the function of conducting free, fair and impartial elections to the local bodies in the state.
Article 243K(1): It states that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats (Municipalities under Article 243ZA) shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
Article 243K(2): It states that the tenure and appointment will be directed as per the law made by the state legislature.
However, State Election Commissioner shall not be removed from his/her office except in like manner and on the like grounds as a Judge of a High Court.
Independence and Institutional Autonomy of Constitutional Bodies:
The recent removal of Andhra Pradesh State Election Commissioner via an ordinance route is an example encroaching upon the independence of the Constitutional body especially in the light of political accusations and vested interests.
This development not only threatens institutional autonomy but also falls foul of the constitutional provisions.
Though the Election Commission of India is facing issues of autonomy due to political interference, the situation at the level of state election commission is grimmer.
To remove incumbent SEC via ordinance threatens institutional autonomy, falls foul of the Constitution:
- The said ordinance reduced the term of State Election Commissioner (SEC) from five years to three years and altered the qualifications required to be the SEC.
- Further, the government by issuing certain orders made the ordinance applicable to incumbent SEC as well. The government’s move is a textbook case of colourable exercise of power.
- The ordinance route to remove SEC falls foul of both Article 243k and Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994.
- Article 243K(2) explicitly bars removal of SEC from his office except in like manner and on the like ground as a judge of a high court.
- Further, it mandates that the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
- Section 200 of the Andhra Pradesh Panchayat Raj Act reaffirms the constitutional safeguards laid under Article 243K.
- In light of these, the government’s move to apply the ordinance amending the SEC’s tenure and qualifications to incumbent SEC may not withstand judicial scrutiny.
Way Forward:
- The current wording of Article 324(5) is “inadequate” and requires an amendment to bring the removal procedures of Election Commissioners on par with the CEC to provide them with the “same protection and safeguard[s]” as the Chief Election Commissioner
- Presently, even at CEC and SEC the administrative expenditure of the Commission is a voted expenditure.
- However, the expenditure of other independent constitutional bodies similar to the Commission i.e. the Supreme Court, Comptroller & Auditor General, Union Public Service Commission are charged/ non-votable expenditure.
- The expenditure of the Commission should be charged on the Consolidated Fund of India. The Commission is of the opinion that a charged budget would be a symbol of the independence of the Commission and will secure its unconstrained functioning.
- Law Commission 255th Report on Electoral Reforms: It recommended, to add a new sub-clause to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution.
- Similar provisions can also be made for the State Election Commissions to ensure autonomy, and free and fair local body election.
Conclusion:
Electoral reforms have been implemented in India mainly through judicial intervention and supported by legal opinion, and have helped to improve perception about the electoral process.
Perception in a democracy like India might be defined as the opinion of the people gathered by surveys or election studies, and is sought to be represented in political campaigns or decisions on electoral process, interventions of the Election Commission of India (henceforth, ECI), judicial verdicts on reforms like candidate affidavits, and authoritative reports of commissions set up to explore electoral reforms.
Insights Current Affairs Analysis (I–CAN) by IAS Topper
