Coronavirus is a reality now. Then many questions arise in front of AP people. Who is right? Nimmagadda Ramesh Kumar who postponed elections following the scare of COVID 19? Or, Jaganmohan Reddy who considers paracetamol or bleaching powder is enough to tackle the epidemic?
The caste war is on the turf of State Election Commission in the context of local body elections in Andhra Pradesh. Vijaysayi Reddy took the help of names of animals to abuse the State Election Commissioner. But Jagan blames everything on caste saying Nimmagadda belonged to 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 appointed. They are happy that YSR was taught a tough lesson. Earlier it was Legislative Council Chairman, who stalled the Three Capitals Bill to select committee, and now the SEC, according to them who blocked the ruling party in preventing their victory in local body elections.
But Corona virus is a reality, its spread is the news globally and locally. Though Andhra Pradesh is least affected, its scare is very high among all, which, the TDP supporters feel was a right ground for deferring elections. The YSRCP is up in guns that TDP used its influence to postpone their humiliating defeat. It is not known why the SEC did not act against violent prevention of nominations of TDP candidates which resulted in YSRCP bagging many seats unanimously. When pro-TDP media criticised the SEC for its inaction against alleged atrocious attacks, the SEC took a drastic step to postpone entire elections. Critics say that whole-sale postponement never happened, though the SEC has power to cancel or postpone 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 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 on evidence, data, or consultation? 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 SEC as an independent body in each state in India to conduct elections to local bodies. The SEC is not subordinate to CEC. It is totally 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 advice of the Chief Minister.
Article 243K is an omnibus provision in the Constitution inserted by 73rd Amendment, which gives general power of superintendence and control in 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 to the Legislature of every State …
243K (2) Subject to the provisions of any 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 (1) 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 due process before taking such a drastic decision. The high office holders 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 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 transfer of district collectors and SPs, while postponing the elections indefinitely. He asked, “Who is CM? Me or Nimmagadda?”. 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).
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 from into the State from the neighbouring 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 postponement and not cancellation, and after normalcy, the process will be resumed.
In fact, the Covid 19 scare in AP is not as serious as in Telangana or New Delhi. It is difficult to agree that there would be shifting of huge masses from four neighbouring states to cast votes. Whether the SEC consulted all political parties involved in elections or did he organize a meeting with state officers to check with the impact of virus and possibility of voters traveling from other states? It was neither mentioned in press conference or notification.
Why Caste Question raised?
Several critics think that Chief Minister should not have raised the caste question and allege that N Ramesh Kumar’s postponement was biased as he belonged to 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.
At the same time the language used by the Chief Minister against an independent State Election Commission also has raised eyebrows among political circle. The Chief Minister was expressing his frustration and helplessness of democratically elected party as the leader of opposition was wielding more power through the officer holders appointed during his time. The TDP strongly supported the decision of postponement in view of Corona Virus spreading like an epidemic, and praised it as independent decision of the SEC.
Can Jagan get SEC removed?
What can Jagan do now, after elections are postponed for six weeks? He is frustrated and asked am I CM or not? Can he get the order postponement reversed? Can he get SEC removed?
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.
Proviso to Article 243K (2) of Constitution says: the State Election Commissioner shall not be removed from his office except in 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 High Court judges are constitutional functionaries and hence they can only be impeached by the Parliamentary resolution and Presidential removal. The SEC is appointed by Governor but cannot be removed by Governor. Generally, SEC is answerable to law and should act according to Constitution, but Governor has no power to alter his decisions. The SEC has 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 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 drop of 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. Will this process be initiated?