The removal of the SEC by the ordinance route raises the question over the legality of the move. And if it passes the judicial scrutiny it would harm the independence of the body.

The legality of the removal and its implication for free and fair elections

• The fact that it was the culmination of an open conflict between the Election Commissioner and Chief Minister makes it a glaring instance of misuse of power.
• The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years.
• The ordinance also amended the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
• This automatically rendered the SEC’s continuance invalid.
• Last month, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
• The State government approached the Supreme Court, but the court declined to interfere.
• Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
• The Chief Minister has no legal right to terminate the SEC’s tenure.
• The Constitution makes the holder of that post removable only in the same manner as a High Court judge.
• If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

Past judgements on the issue

• The State government seems to have gone by legal opinion that citedAparmita Prasad Singh vs. State of U.P. (2007).
• Cessation of term vs. removal: In that judgement the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.
• The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.

UPSC can frame the question based on the judgement in case by the SC and its implication for the independence of the body in conducting the fair, free and impartial election.

Issues arising out of the past judgements

• The judgment seems erroneous, as it gives freedom to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
• This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
• It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
• Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for an appointment may not survive judicial scrutiny.
• Prohibition on the variation of condition of service: Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
• Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.

Conclusion

In order to ensure the independence of the SEC and free and fair elections, legality of the move should not pass the legal scrutiny. Even if it passes the legal scrutiny the government should amend this provision avoid such instances in the future.

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