Jagan’s power v/s Independent State Election Commission

Supreme Court verdict cleared the air: Elections are postponed, but the Model Code of Conduct will not have extended application. The game of power will have a little gap. Nimmagadda Ramesh Kumar, who in his capacity as State Election Commissioner postponed elections in the backdrop of building scare of COVID 19. It was upheld by the Supreme Court. Jaganmohan Reddy, a popular leader, and the Chief Minister said the Model Code of Conduct extended for an unduly long period obstructs the developmental activity. The apex court agreed and asked SEC to reduce the code only to four weeks before the date of polling, which must be fixed after consulting the government.

Before the CM took the matter to Supreme Court, it turned into a war of power and caste on the turf of local body elections conducted by the State Election Commission in Andhra Pradesh. YSRCP’s MP Vijaysayi Reddy took the names of animals to abuse the State Election Commissioner. But Jagan blames everything on caste saying N Ramesh Kumar belonged to the social category (caste) of Chandrababu Naidu. Social media is already agog with a section praising Chandrababu for his ‘master political stroke’ to get elections postponed through the SEC whom he got recommended. They are happy that YSR was taught a tough lesson. Earlier it was Legislative Council Chairman, belonging to TDP who stalled the Three Capitals Bill by sending it to select committee, and now they allege that SEC blocked the ruling party from reaping the fruits of power in the local body elections.

Coronavirus is a reality and its spread is the top news globally and locally. Though Andhra Pradesh is least affected, its scare is very high among all, which, the TDP supporters feel the right ground for deferring elections. The YSRCP is up in guns that TDP used its influence to postpone their humiliating defeat. The SEC was criticized for not acting against violent prevention of nominations of TDP candidates which led to YSRCP bagging hundreds of seats ‘uncontested’. The pro-TDP media criticized the SEC for its inaction against alleged atrocious attacks. The SEC took a drastic step to postpone entire elections. Critics say that wholesale postponement never happened, though the SEC has the power to cancel or postpone the election in a booth, constituency or region.

A journalist pointed out that the reaction of the Chief Minister Jagan to SEC decision, and the language adopted by his MP Vijaysai Reddy was wild and improper. How could caste question be brought in? YSR supporters say why not when it’s a fact that both belong to the same caste, and their bonding is not secret? To counter this, the TDP circles say that Nimmagadda, though was senior and eligible, was not made the Chief Secretary by Chandrababu regime.

The questions repeatedly asked are: “Whether the State Election Commissioner has enough constitutional authority to postpone elections to local bodies in toto for six weeks?” The power he exercised in postponing the elections along with transferring the district officers was within the limits of due process. Whether SEC’s action is evidence, data, or consultation? The fourth question is whether it is proper for SEC and CM to have done and said as they did?

The SEC got all the powers that Central Election Commission has. The 73rd and 74th Constitutional amendments conferred overall supervisory powers on the SEC as an independent body in each state of India to conduct elections to local bodies. The SEC is not subordinate to CEC. It is independent of CEC. While CEC is a multimember body, the SEC is a single person authority. The SEC is appointed by the Governor, who generally is supposed to act on the advice of the Chief Minister.

Article 243K is an omnibus provision in the Constitution inserted by the 73rd Amendment, which gives general power of superintendence and control in the conduct of elections to the local bodies. It says: “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.

Article 324 regarding CEC says: “The superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and the Legislature of every State …

243K(2) Subject to the provisions of any the 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:

Andhra Pradesh Panchayat Raj Act, 1994 Section 200 deals with Constitution of Andhra Pradesh Election Commission for Local Bodies. It says: “There shall be constituted a State Election Commission for Local Bodies for the superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of elections to, all the Panchayat Raj Institutions governed by this Act”.

Due care, due consultation with all political parties involved in elections, the officers supposed to conduct the election at ground level, and due data or evidence to prove COVID 19 danger, etc were essential to an objective decision.

The SEC reportedly stated that he took the view of senior functionaries, which the Chief Minister disputed saying that Principal Secretary Health was not consulted, who else could be senior to him the SEC would have consulted. It is not known whether he consulted all political parties. There are genuine doubts about the due process before taking such a drastic decision. The high officeholders are expected to act without bias. Administrative law and ethics demand meticulous effort to avoid the bias based on caste, political, official or personal or any such possibility that generates doubts about genuineness.

It’s a real shock to the YSR party as they hope to sweep elections. Jagan strongly reacted and attributed caste bias to N Ramesh Kumar, who has a clean career. Is it his mistake to be a social category in which TDP leader Chandra Babu Naidu also was born? Jagan took serious objection to the transfer of district collectors and SPs while postponing the elections indefinitely. He asked: “Who is CM? Me or Nimmagadda?”. The fact is that both hold Constitutional offices.

SEC’s full control

The SEC has also complete control over the officers and the staff of the Government which is kept under his control for the conduct of elections as long as the code of conduct is in force. Article 243K (3) says that the Governor of a State shall when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

Postponement

In a press conference on Sunday, SEC cited COVID 19 to defer elections. He has used the advisory sent by the Centre to State Governments “to control large gatherings. Voters will be gathering in large numbers for the upcoming elections, and there will be long queues. As we are using paper ballots, human contact chances are high”. The SEC also issued a notification that says: ‘The Commission also took into consideration, the movement of many voters from Hyderabad and Telangana region, who would travel to their native places, to vote”.

It also said: “There may be large scale movement of voters into the State from the neighboring States of Telangana, Karnataka, Odisha and Tamil Nadu to participate in the local body elections, which are keenly fought.” The SEC said it was only the postponement and not the cancellation, and after normalcy, the process will be resumed. His lawyers could convince the apex court on this point.

Why Caste Question raised?

Several critics think that the Chief Minister should not have raised the caste question and allege that N Ramesh Kumar’s postponement was biased as he belonged to the same social group to which former Chief Minister Chandrababu Naidu, who recommended his name to Governor. The Chief Minister suspects the hand of TDP leader, and he cited the transfer of higher officers while postponing the elections. The postponement without so many transfers would have left no scope for the questions of bias or mala fide exercise of huge discretionary power.

The Chief Minister was expressing his frustration and helplessness of democratically elected party as the leader of the opposition was wielding more power through the officeholders appointed during his time. Naturally, the opposition TDP strongly supported the move of SEC.

Chandrababu Naidu recommended N Ramesh Kumar as SEC in 2016, who will have five-year tenure. Constitutionally, he has all the powers to effectuate free and fair polls to elect local bodies. He cannot be removed as per law. Governor also cannot reverse the order of postponement.

The proviso to Article 243K (2) of Constitution says: “The State Election Commissioner shall not be removed from his office except in the like manner and on the like ground 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”.

The SEC is appointed by Governor but cannot be removed by Governor. Generally, SEC is answerable to law and should act according to the Constitution, but Governor has no power to alter his decisions. The SEC has a high power of discretion that is why a senior, mature and well-experienced officer is expected to be recommended by the Chief Minister to the Governor for this high position.

Andhra Pradesh Panchayat Raj Act, 1994 Section 200(3) is also similarly coached. It says: “The conditions of service and tenure of office of the Andhra Pradesh. Election Commissioner for Local Bodies shall be such as the Governor may, by rule, determine: Provided that the Andhra Pradesh Election Commissioner for Local Bodies shall not be removed from his office except in the like manner and on the like grounds as a Judge of a High Court and the conditions of service of the Andhra Pradesh Election Commissioner for Local Bodies shall not be varied to his disadvantage after his appointment”.

The High Court judge cannot be just removed by the drop of a hat. There should be a motion in Parliament first, then SC should inquire, if allegations are proved, the motion should be put to vote, if that is passed, the President can remove him. It is not possible in this case.

(M Sridhar Acharyulu is a Former Central Information Commissioner)