The ruling YSRCP government sent an ordinance to Governor Bhusan Haricchandan to remove Nimmagadda Ramesh Kumar as State Election Commissioner (SEC) and begin the process of appointing a new commissioner.
The government of Andhra Pradesh has made a swift political move in issuing an ordinance No.5 of 2020, dated 10.04.2020, amending the Andhra Pradesh Panchayat Raj Act, 1994. The governor is empowered to promulgate such an ordinance under Article 213 of the constitution of India. According to the said ordinance, three government orders 617, 618, dated 10.04.2020 and 619, dated 11.04.2020 have been issued.
Under the 73rdConstitutional amendment incorporating Chapter-IX containing Articles 243, 243A to 243O in the Constitution, the then State government of Andhra Pradesh had enacted the Andhra Pradesh Panchayat Raj Act, 1994. The Andhra Pradesh Panchayat Raj Act, 1994 contemplates the three-tier Panchayat Raj System(1) Grampanchayat (2) Mandal Parishad and (3) Zilla Parishad.
Article 243K of the Constitution contemplates that the power to conduct an election to the Panchayat shall vest in the State Election Commission consisting of State Election Commissioner to be appointed by the governor. Article 243K(2) of the Constitution contemplates that the conditions of service and tenure of the State Election Commissioner shall be contained in the rules determined by the governor. However the same shall not be varied to the disadvantage of the State Election Commissioner after his appointment.
Sec.200 of the A.P.Panchayat Raj pre-amended Act constituted a State Election Commission as stipulated under Article 243K of the Constitution. Sub Sec.2 stipulates that the governor on the recommendation of the government shall appoint a person who is holding or who has held an office not less in rank that of a Principal Secretary to the government as State Election Commissioner. Sub Sec.3 states that the service and tenure shall be as per the rules determined by the governor. A close reading of the provision shows that the power of determining the service conditions and tenure is delegated to the government and the provision does not contemplate the same.
The State Election Commission constituted under the pre amended Act i.e. before the issuance of the present ordinance has already issued notification relating to conduct of elections to the three-tier panchayat raj system.
Is The Ordinance Constitutionally Valid?
Two questions arise for consideration (1) the constitutional validity of the ordinance promulgated amending the Act and (2) if the ordinance promulgated is held to be constitutionally valid, whether the same would affect the service conditions and the tenure of the Election Commissioner who was appointed before the promulgation of the ordinance and also as to whether the election process that was initiated by the State Election Commission before an amendment can be further continued by the newly constituted State Election Commission.
In so far as the first question is concerned, that the ordinance is constitutionally valid since the legislature is competent to bring an amendment to the Act. Article 243K confers power upon the legislature to make such an enactment. In so far as the second question is concerned, since the reading of the ordinance shows that the entire State Election Commission is constituted afresh with effect from the date of the ordinance, there would not be any relevance concerning testing the same vis-vis the terms and conditions and tenure of the State Election Commissioner appointed before the amendment and the rider contained in Article 243K.
Sec.200 of the Panchayat Raj Act, 1994 before the issuance of the ordinance does not contemplate any tenure or service conditions. It only contemplates the requisite qualification of a person to be appointed as State Election Commissioner. By the power delegated under Sec.200, Rules were framed fixing the tenure as five years and age limit as 65 years along with other service conditions.
Now the present ordinance has been issued replacing Sec.200 of the pre-amended Act by the new Sec.200. A reading of the ordinance shows that a State Election Commission is being constituted afresh and the requisite qualification to be appointed as an Election Commissioner is that a person should hold the office of the Judge of the High Court or held such an office. The ordinance also stipulates that the term shall be only for three years, which may be further extended for another three years. The other provisions about the stipulation that the conditions of service shall not be varied to the disadvantage after the appointment of the Election Commissioner are retained.
Sub Sec.5 of the ordinance contemplates that on and with effect from the date of coming into force of the ordinance, any person appointed as State Election Commissioner and holding the office shall cease to hold the office. A plain reading of the ordinance shows that the same has been issued to substitute Sec.200 of the pre-amended Act by the new Sec.200. It is very relevant to notice that an amendment is made to the Act by deleting Sec.200 in its entirety and substituting with a new Sec.200. This does not constitute an amendment of a particular provision. It is a case of replacement of a provision in its entirety.
The ordinance is silent about ‘saving’ of the acts done by the State Election Commission prior to the replacement. The reading of the ordinance shows that the State Election Commission that was constituted has been abolished by deleting the said provision and a new State Election Commission is constituted but the ordinance does not speak about the fate of the election process initiated by the erstwhile State Election Commission. The applicability of provisions of the General Clauses Act, 1897and A.P.General Clauses Act, 1891is doubtful since it is not a case of repeal. The provision itself has to be looked into to interpret as to whether it would save the election process initiated by the erstwhile State Election Commission or not.
A reading of the ordinance shows that the same is silent about the fate of the process of election initiated by the erstwhile State Election Commission and in fact, it impliedly shows that the same is not saved. The argument that the ordinance is inconsistent with Article 243K of the Constitution does not hold the water for the reason that under the ordinance the constitution of State Election Commission itself is replaced.
The ordinance spells out that there shall be constituted State Election Commission for the superintendence, direction, and control of preparation of electoral rolls for and the conduct of elections to all the panchayat raj institutions governed by the Act. Which means a State Election Commission afresh has been constituted. Therefore the rider contained in Article 243K about the alternation of service conditions after the appointment is not at all relevant.
The Hon’ble Allahabad High Court had held that the tenure cannot be treated as a service condition and therefore any alteration of the tenure is not protected under Article 243K. The said judgment though supports the argument that the tenure is different from service conditions, the same may not be relevant since in the present case the entire provision has been replaced. A careful reading of the Hon’ble Allahabad High court judgment shows that in the said case a provision in an Act is not substituted. Only an amendment was made to the Rules made under the statute altering the tenure.
Therefore, the ordinance that has been issued substituting earlier Sec.200 of the A.P.Panchayat Raj Act, 1994 is constitutionally valid and the subsequent appointments made would also be legally valid. But the question is about the fate of the election process that was initiated by the erstwhile State Election Commission. In the light of the aforesaid ambiguity, if the State government makes a suitable amendment to the present ordinance contemplating ‘saving’ of the election process, it would be explicit that the election process can be continued by the newly constituted State Election Commission.