Its still fresh in the mind, that in the middle of the local body elections, the Governor of Andhra Pradesh promulgated an ordinance removing the incumbent election Commissioner and appointed a retired judge in his place. Lets first look into the power of the Governor to promulgate an ordinance.
Art 213 (2) of the Constitution of India, says
Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor Explanation Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the president and assented to by him CHAPTER V THE HIGH COURTS IN THE STATES
So, when an emergent situation exists, which requires immediate action in the absence of the legislature being in session,
1. the Governor of a State can issue an ordinance.
2. This ordinance partakes the nature of an Act but ceases to operate on the expiration of 6 weeks from the date of reassembly of the legislature or if it is rejected apriori.
The Lawmakers have ensured that the ordinance stays in power for only a period of 7-71/2 months and be subject to the ratification by the Legislature. The logic being what is done in emergency is of temporary nature.
The lawmakers have ensured that this ordinance making power is not misused by the Executive on the pretext of an emergent situation and usurp for itself law making, which is beyond its powers. Laws must be made by the elected representatives of people, after a thorough discussion in the legislature.
In this backdrop, what transpired in the episode of State Election Commissioner, A.P raises a few more concerns:
The tenure of the Election Commissioner is not over and in that eventuality his removal through an ordinance. Art 243 K (inserted by the seventy-third amendment 1992), speaks about the constitution commission, appointment of a state election commissioner (1) and in subclause (2) says the conditions of service and tenure of office of the State election commissioner shall be such as the Governor may by rule determine. The proviso says State Election Commissioner shall not be removed except in the like manner and on 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.
When the language of the subclauses conveys different meaning and the proviso doesn’t follow the subclause, it becomes substantive law. Subclause 2 speaks of conditions of service and tenure of office and proviso speaks about only conditions of service, they subsume as they are unison and the matter fall under the service domain of the State Election Commissioner.
- As regards the new Election Commissioner, the Ordinance has a problem regarding reasonable classification and intelligible differentia which for the core of Article 14, Right to equality. The ordinance entirely removes Civil servants as a category and choses retired judges to be the chosen class to the exclusion of all others.
- There is a violation as regards the age of the incumbent as he is beyond 65 years of age, which is the norm till now.
- The Ordinance says in A.2(5) that an Election commission is appointed under Section 200 of A.P. Panchayat raj and further says it has to power to remove the existing Election Commissioner, which is a gross violation of Constitutional principles. Election Commission is constituted by the provisions of Constitution and not by an ordinance, which the Governor himself has brought into existence. More so, it is abject negation of constitutional principles, to include a removal clause in the same Act.
In this backdrop, if an ordinance is of a temporary nature to meet emergent situations and its life is dependent on ratification by the Legislature, how justified is it make amendments to the provisions of Constitution, for short term temporary gains is a million dollar question. As J Bhagwati says “
A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. The Judgement of Hon’ble A.P.High Court, expected shortly, would make the issues clear.
- Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors 1987 AIR 579, 1987 SCR (1) 79
- S.P. Gupta & Ors. v. Union of India & Ors.,  2 SCR 365,
- K.C. Gajapati Narayan Deo & Ors. v. State of Orissa,  1 SCR 1
- P. Vajravelu Mudaliar v. Special Deputy Collec- tor, Madras & Anr.,  1 SCR 614
- In re Uday kumar