AP Government is reportedly justifying the sensational ordinance promulgated on Thursday removing the SEC, citing two Supreme Court judgments. Which cases are they? Will these two judgments justify removal?
First judgment in Kailash Chandh Mahajan v State of Himachal Pradesh, was that cessation of office because of reduction of the term of office will not amount to the removal of the officer holder. The Himachal Pradesh State Government has removed the State Electricity Board Chairman, for political reasons. The decision was challenged, and it reached the Supreme Court. State of Himachal Pradesh and others vs Kailash Chand Mahajan and others, which was finally decided on 20 February 1992. The text of the judgment can be seen at https://indiankanoon.org/doc/311809/ This is reported in AIR 1992 SC 1277, In Kailashchand case the Supreme Court held that reduction of tenure of service amounts to cessation and not removal. The protection granted by the statutory provisions shall cease to exist after amendment of the Act. Whether Kailash Chand Mahajan’s rule applies to State Election Commissioner’s removal also, who is protected by a Constitutional provision Article 243K.
The AP Government heavily depended on Allahabad High Court’s judgment in Aparmita Prasad Singh versus State of Uttar Pradesh decided on 23.8.2007. Aparmita was State Election Commissioner in UP during the rule of Mulayam Singh Yadav. He was appointed during Mayawati’s rule. Originally in 1994 the term of SEC was five years or 65 years of age, whichever is earlier. The Rules were amended in 2006 extending the term to 7 years and 67 years of age. After the change of guard, the new CM did not like the way the SEC questioned the transfer of several officers during the local body elections. Singh took a dig at the bureaucracy saying: “Today the bureaucrats have bowed completely before the politicians. That’s why you see many a bureaucrat ready to crawl when asked to bend.” In UP also there were incidents of violence as both the first and the second phases of the civic poll were marred by incidents of group clashes, booth capturing, bogus voting, firing, and arson in several districts, including Lucknow, Kanpur, Meerut, Agra, and Varanasi.
Then the government amended the service conditions and amended the Rules in 2007 restoring 5-year-term and 65 years of age. Every amendment was made applicable to the present SEC, Aparmit. The amendment to Rules in 2006 was valid because the change was not disadvantageous to the petitioner as SEC. But changed Rules 2007 cannot be valid because of being disadvantageous to him. Aparmit challenged this change and contended that it was in glaring breach of Article 243K. Allahabad High Court agreed with the UP government and did not give any relief to SEC saying he has attained the age of 65 years by that time though 2006 Rules permit him to continue up to 67 years of age.
In KisansingTomar’s case, the SC held 2005 (https://indiankanoon.org/doc/1736371/) that the State Election Commission is vested with the same power as the Election Commission of India possesses and the provisions contained in Art 243-K are parimateria and it is the duty of the ECI and the SEC to conduct the election in a just and fair manner. The EC must discharge its constitutional obligation independently and effectively without being influenced by a political party in power or the executive. A free and fair election is the basic structure of our constitution. The purpose of Art 243-K is, not only the ECI but also the SEC should discharge its constitutional obligations independently without fear of hanging sword on their head.
The SEC has to conduct elections to local bodies independent of the Executive or the Government and there is a special provision in the Constitution under Article 243-K that was introduced by the 73rd Amendment to strengthen the third tier of the federation of India, that is the local bodies. The Supreme Court said no constitutional rider has been imposed (like Art 243K) on the power of the State Legislature to amend the service rule for the purpose of reduction of tenure.
In Kailashchand Mahajan case, the term of Himachal State Electricity Board has been reduced. There was not 243-K like condition or limitation on the power of state legislature to reduce the term of office. Hence SC did not agree with the conclusion that cessation does not amount to removal.
It generally happens that after the change of Government, the term of other constitutional functionary’s office bearers of local bodies and corporations are reduced on one or the other ground to a lesser period that for which they were appointed or selected originally. Such a situation should be avoided by all means and costs so far as the office of the State EC is concerned. Whether Art 243K should be interpreted in such a manner which may defeat its very purpose to provide independence to the SEC?”
Provision of a statute must be constructed as to make it effective and operative, on the principle of ut res majis valeat quam periapt (=It is better for a thing to have an effect than to be made void, i.e., it is better to validate a thing than to invalidate it). It also said though they denote different meanings, the ‘service conditions’ used in Art 243-K should be interpreted in the manner covering the tenure of office as well as the other service benefits.
Under ancient Mimansa Rules of Interpretation and purposive rule of interpretation which is also called mischief rule while construing Article 243-K, the outcome will be the same i.e., legislature lacks the power to do anything including reduction of tenure of State Election Commission which may directly or indirectly affect the performance of the Election Commission for any reason whatsoever as an independent body, held the Supreme Court in Aparmita case.
Once Art 243-K of the Constitution provides that the SEC may be removed only in the manner as a Judge of the High Court is removed as provided in Art 217 of the Constitution of India, then the State Legislature lacks the power to reduce the tenure by amending the rules in question. Removal co-relates with the reduction of tenure. Whether it is cessation or removal in pursuance to the power conferred in Art 217 of the Constitution, the outcome of both the process is the same, i.e., SEC shall cease to hold office.
Only one point considered by the HC to deny the relief sought by Aparmit was that he has attained the age of 65 which according to original Rules 1994 brings in the disqualification and makes him demit the office. Hence, it is clear that neither Kishan Chand Mahajan case nor Aparmita case can save the ordinance of the AP Government. It is unfortunate that the Chief Minister was not guided on this point. In fact, the Constitutional provisions are clear as to how the State Government cannot remove the State Election Commission by reducing the term through amendment, instead of following the impeachment procedure.
Ambedkar says: (Writings and Speeches Vol 1, page 339) “The people are always asking as to why there should be this mismanagement and maladministration in the States. The usual answer is that it is the consequence of Personal Rule. Everywhere the demand made is that Personal Rule should be replaced by the Popular Government. I have grave doubts about the efficacy of this demand. I do not think that in a large majority of cases the substitution of the popular government will be the cure for the ills of the State subjects. For, I am sure that the evils arise as much from the misrule of the Ruler as they arise from want of resources. Few have any idea as to how scanty are the resources of Indian States”.
Any elected government should behave like people’s government and not the chief minister’s personal government.