Guest Post: Premature Termination of the State Election Commissioner – On the Constitutionality of the Andhra Pradesh Ordinance No.5 of 2020

[This is a Guest Post by Kshitij Maheshwari.]


Introduction

Last month, the Governor of Andhra Pradesh promulgated the Ordinance No.5 of 2020 (“Ordinance”), which amended Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (“Act”) and also framed the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service and Tenure of State Election Commissioner) Rules, 2020 (“Rules”).* Section 200(1) of the Act provides for the appointment of a State Election Commissioner (“SEC”). Section 200(2) of the Act, before its amendment, provided that an officer who was holding or had held an office not less in rank than Principal Secretary to the government could be appointed as the SEC. Post-amendment, the eligibility criteria has been modified, and only a former Judge of the High Court will now be eligible for appointment as the SEC. The newly framed Rules also provide that the SEC will hold the office for a term of three years and will be entitled to be considered for re-appointment for another three years. However, more importantly, the Rules also state that the incumbent SEC shall “cease to hold office” with effect from the date of promulgation of the Ordinance. Hence, in pursuance of the Ordinance, the incumbent SEC, N Ramesh Kumar, a retired bureaucrat, who was appointed on 30th January 2016 for a term of five years, was terminated and V Kanaraj, a former Judge of the Madras High Court, was appointed in his place. At present, the Ordinance is under challenge before the Andhra Pradesh High Court.

Section 200 of the Act is almost in pari materia with Article 243K of the Constitution. Article 243K deals with elections to the Panchayats in a state:

243K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) 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 grounds 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.

(3) … (Emphasis supplied)

Article 243K(2) states that subject to any law made by the state legislature, the Governor has the power to determine the conditions of service and tenure of office of the SEC. This power, however, is limited by a proviso. A bare reading of the proviso which is divided into two parts by the word “and” (emphasized above), suggests that the Governor is precluded from determining the conditions of service and tenure of office of the SEC in a manner that would either (i) lead to the SEC being “removed” without following the same procedure, as is required to be followed for the removal of a High Court Judge or (ii) vary the “conditions of service” after the SEC’s appointment, to his disadvantage. Therefore, when determining the conditions of service and tenure of office of the SEC, a breach of any of the above two circumstances would violate Article 243K(2).

In this post, I will argue that the Ordinance and the amendments carried out thereunder, which led to the abrupt termination of the former SEC, are unconstitutional, as they violate both the conditions specified under the proviso.

The Governor has removed the SEC in violation of the constitutional mandate

The state government has contended that the termination in question – caused by the curtailment of the former SEC’s tenure – amounts to his ‘cessation’ from service, and not his ‘removal’. Hence, according to the government, the process of removal of a High Court Judge which is prescribed under Article 217(1) proviso (b) read with Article 124(4), was not required to be adhered to in the present case. Further, Section 16 of the General Clauses Act, 1897 (“GCA”) states that the power to appoint a person also includes the power to dismiss him. This also raises the question of whether the Governor can curtail the SEC’s tenure since he has the power to appoint him.

In my opinion, not only does the Governor not have the power to curtail the SEC’s tenure but for the reasons stated below, even the exercise of such power effectively amounts to the SEC’s ‘removal’ and not his ‘cessation’ from office.

First, once appointed, a High Court Judge is entitled to hold office until he attains the retirement age of sixty-two years, subject to earlier removal. He can be removed only by an order by the President, based on a motion passed by both Houses of Parliament and two-thirds of the members present and voting on the grounds of “proved misbehaviour or incapacity”. This intricate removal process coupled with the fixed age of retirement guarantee security of tenure to the Judge, which enables him to discharge his duties free from external pressures, and thus, helps safeguard the independence of the judiciary. By providing that “[T]he State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court”, the proviso seeks to extend the security of tenure to the SEC in the same way that it protects a High Court Judge, albeit only during the fixed-term of his appointment. This allows the SEC to act independently and without the fear of dismissal for taking decisions that may not find favour with the executive, and thus, enable him to fulfill his mandate under Article 243K(1) of conducting elections in a free and fair manner. The curtailment of the SEC’s tenure, on the other hand, defeats the object and purpose of the proviso by adversely affecting his security of tenure. If such discretion is available with the Governor, it could easily be used by the executive to either browbeat the SEC to toe its line or, like in the present case, to unilaterally terminate his appointment. In either scenario, the threat to the SEC’s security of tenure would restrain him from discharging his duty effectively and independently, which is precisely the situation the prescribed removal process seeks to overcome. It is, therefore, submitted that the words “removed from his office” occurring in the first part of the proviso, contemplate termination of the SEC not just by removal by impeachment by the Parliament, but, they also apply to his termination on account of curtailment of his tenure. Since the manner of the SEC’s removal in the present case comes under the latter category, it needed to comply with the procedure for removal specified in the first part of the proviso to Article 243K(2).

Second, a perusal of the events leading up to the SEC’s termination indicates that his termination was not a part of electoral reforms, as has been averred by the government. In March 2020, the SEC postponed the elections to the village panchayats by six weeks due to the prevailing situation resulting from the outbreak of COVID-19, and ordered the transfer of several government officials, but directed that the Model Code of Conduct (“MCC”) would remain in place. Following this, the Chief Minister of the state openly criticized the SEC, and the government challenged his decision before the Supreme Court. The Supreme Court upheld the SEC’s decision to postpone the elections but directed that the MCC be lifted. It is in this backdrop that the SEC was terminated less than a month after the above order of the Supreme Court. It appears prima facie that the government wanted to punish the SEC for what it thought was misconduct on his part. But the first part of the proviso to Article 243K(2) indicates that an act of alleged “misbehaviour” has to be “proved” before the SEC’s removal. This ensures a deeper probe into any allegation against the SEC and under a procedure that is devised in consonance with the principles of natural justice. Therefore, notwithstanding that the Ordinance and the Rules are innocuously worded, the fact that the SEC’s termination has sought to be founded on the ground of misconduct, the requirements of the proviso had to be complied with. Accordingly, in the present case, the Court is bound to go behind the Ordinance to ascertain its true character. In Ram Ekbal Sharma v. State of Bihar, the Supreme Court dealt with a challenge by a government servant against an order of compulsory retirement issued against him. While quashing the impugned order, the Court held that the power of the State to terminate a civil servant under Article 311, which deals with the dismissal, removal, and reduction in the rank of civil servants, is not absolute and the Court can lift the veil to determine whether or not the order is punitive:

[E]ven though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. (Emphasis supplied)

 

Being a constitutional functionary, the termination of the SEC must be subjected to an even higher threshold of judicial scrutiny. In the present case, retaliatory action against the SEC for his ‘misconduct’ was camouflaged as an order of cessation. The Ordinance is, therefore, liable to be quashed.

Curtailment of the SEC’s tenure has resulted in varying the conditions of service to his disadvantage

The second argument of the government is that since the terms “conditions of service” and “tenure of office” have been mentioned separately under Article 243K(2), and thereafter, only the term “conditions of service” has been mentioned in the second part of the proviso, this indicates that both the terms have separate connotations and the SEC’s tenure is not a condition of his service. Consequently, according to the government, the curtailment of the SEC’s tenure does not amount to varying the conditions of his service on which he was appointed, to his disadvantage. Moreover, Section 21 of the GCA states that the power to issue a rule also includes the power to amend or vary the same. Could it then be argued that the Governor who has the power to determine the conditions of service and tenure of office of the SEC, also has the power to amend the same after his appointment? In my opinion, such interpretation is untenable as it would lead to inconsistency and create an illogical situation. If the SEC’s tenure is not a condition of his service, the corollary would be that the Governor has the power to vary his tenure to his disadvantage, as the second part of the proviso states that “[T]he conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment”. However, this interpretation would be contradictory to and render the first part of the proviso meaningless, which, as discussed above, precludes the Governor from curtailing the SEC’s tenure after his appointment. Thus, the proviso has to be interpreted harmoniously along with the main provision so as to give effect to both the parts thereof and avoid this anomalous situation.

Concluding remarks

To summarize, once appointed, the SEC holds office during good behaviour, and not during the pleasure of the Governor. Unlike a government servant, there is no employer and employee relationship between the SEC and the Governor. The Ordinance causes the premature termination of the SEC by curtailing his tenure, which tends to put him on the same footing as a government servant. This, however, is entirely contrary to the intent of Article 243K(2), which confers the SEC with an irremovability protection in order to preserve his independence. Hence, the Ordinance is ultra vires the Constitution.


  • Note: The texts of the Ordinance and the amendment to Section 200 of the Act were not available on the Andhra Pradesh e-gazette at the time of publishing of this post.

The Importance of Fourth Branch Institutions to Constitutional Democracy [Guest Post]

[This is a guest post by Tarunabh Khaitan.]


Democratic backsliding (generally speaking)

There is growing acknowledgement that the onward march of democracy in the late twentieth century has been arrested, at least on certain key parameters. As is argued at greater length in this paper, there are some key common characteristics to creeping authoritarianism of the twenty-first century (key points of this paper are discussed in this podcast interview).  In sum, what we are witnessing is a crisis of executive accountability (i.e, that of the political executive branch). There is a gradual erosion of all three forms of accountability-seeking mechanisms that are integral to democratic government: (i) electoral or vertical accountability to the people, (ii) horizontal or institutional accountability to the political opposition, judiciary and fourth branch institutions, and (iii) diagonal or discursive accountability to the academy, media and civil society. The paper further identifies the precise mechanisms through which executive aggrandizement is taking place. It argues that this aggrandizement is incremental and systemic, uses democratic rhetoric, and is effected by the fusion of the ruling party and the state. Finally, the paper emphasises the limitations of the judiciary in defending democracy on its own, and calls for greater attention to the role of political parties, fourth branch institutions, electoral systems and global institutions.

Is Indian democracy also backsliding?

Unfortunately, the list of key democracies that appear to be backsliding includes India. Admittedly, unlike Poland, Turkey or Hungary, India is not a paradigmatic case of democratic decay of our times. With Israel, United States, and South Africa, it is perhaps a borderline case—the trends are unmistakably there, but perhaps reversible. A new, work-in-progress, paper documents and examines the evidence for this claim about the state of Indian democracy. This paper finds that the NDA government in office between 2014 and 2019 has indeed sought to undermine each of the three key strands of executive accountability. Unlike the assault on democratic norms during Indira Gandhi’s Emergency in the 1970s, there is no evidence of a direct or full-frontal attack today. The BJP government’s mode of operation has been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as ‘killing a constitution by a thousand cuts’. The incremental assaults on democratic governance have typically been justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors to the state).

What can be done about it?

At least in the Indian context, it is clear that the judiciary alone cannot protect democracy. This is not to say that we should give up on the judiciary. It has an important role to play, and the Supreme Court needs to urgently recalibrate its dual role as a constitutional court and an appellate court, to ensure that the latter function does not continue to cannibalise the former. But democracy needs to hedge its bets, rather than counting on a single institution for its protection. This is where the role of the ‘fourth branch’ becomes crucial.

Characterised as the fourth branch of the state — because of their distinctiveness from the executive, legislature and judiciary — these institutions are tasked with the protection of key constitutional values such as democracy, legality, impartiality, probity, human rights and price stability (for eccentric American reasons, they are called the ‘fifth branch’ in the United States). While Chapter Nine of the South African Constitution explicitly guarantees independence to the fourth branch of the state, the Indian Constitution does so implicitly by expecting Parliament to enact a law prescribing detailed mechanisms for appointments to and functioning of such institutions — for example, through Articles 280(2) (Finance Commission) and 324(2) (Election Commission). However, an Independent Institutions Bill remains a long-unrealised constitutional aspiration. In the Indian context, institutions of the fourth branch include the Election Commission, Lokpal, Central Bureau of Investigation, Reserve Bank, National Statistics Commission, National Human Rights Commission, Information Commission, commissions for various marginalised groups, Central Vigilance Commission, Comptroller & Auditor General, Attorney General, Public Service Commission, University Grants Commission, Finance Commission, Niti Aayog, media regulators and many others. Some of these institutions are constitutional; others have quasi-constitutional status.

One way to accomplish the independence of Fourth Branch institutions is through enacting an Independent Institutions Bill, whose contours are outlined here. Three key demands are stressed: one, multi-partisan appointments, two, operational independence and impartiality, and three, accountability to the legislature rather than the executive.

Manifesto Pledges to ‘Save the Constitution’

In its manifesto, the Congress Party claims that “Never before have the institutions that underpin a parliamentary democracy been so brazenly undermined, denigrated and captured as in the last 5 years. Examples of this include the Reserve Bank of India, Central Vigilance Commission, Election Commission of India, Central Bureau of Investigation, Enforcement Directorate, Central Information Commission, National Statistics Commission and National Human Rights Commission.” Well, yes, never before, except during the Emergency in the 1970s.

Putting that exception to one side, this recognition is followed by a key promise:

“Congress promises to restore the dignity, authority and autonomy of these institutions while making them accountable to Parliament. Congress promises that selection and appointment to these bodies will be transparent and will be with due regard to the importance of institutional integrity.” [para 24.01]

 

The CPM manifesto also contains a similar diagnosis of the state of Indian democracy. It claims that the BJP government “has mounted a brazen and continuing assault on all Constitutional authorities and institutions during these last five years. The BJP continuing to head the central government will further undermine the fundamental pillars of our Constitution.” Yet again, a similar record of the CPM government in West Bengal is glossed over. The Manifesto further pledges to “Protect the independence of Statutory, Constitutional and Regulatory Bodies by ensuring transparency in appointments to oversight, regulatory and adjudicatory bodies, like the CVC, CBI, ECI, National/State Human Rights Commissions, Lokpal, Lokayuktas, Womens’ Commissions, SC/ST Commissions etc”. It also seeks to safeguard the autonomy of particular institutions, such as the RBI and the Election Commission.

The Emergency and the party-state fusion under the Left rule in West Bengal significantly damaged Indian democracy. Of course, we cannot expect their 2019 manifestos to own up to these evils of their own past. But if these parties do win power, we need to be assured that their recognition that democracy needs a protected space for the political opposition and for independent and autonomous institutions is sincere. They cannot be allowed to get away with loving democracy only when in Opposition. We must not let them forget these manifesto promises if and when they come to power.

* The author is an associate professor of law at Oxford and Melbourne. He is also the General Editor of the Indian Law Review. All views expressed here are personal and may not be attributed to these institutions.