Sacking by subterfuge 

#GS2 #Executive #Judiciary 

Removal of A.P.’s top election official through ordinance route is a case of abuse of power 

  • The legality of the removal of the Andhra Pradesh State Election Commissioner (SEC) is seriously in doubt. 
  • That it was the culmination of an open conflict between the Election Commissioner, N. Ramesh Kumar, and Chief Minister Y.S. Jagan Mohan Reddy 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, and amend 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. 
  • The Chief Minister has no legal right to terminate the SEC’s tenure, as 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. 
  • 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 appointment may not survive judicial scrutiny. 
  • 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.

 

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