The Telegraph
Thursday , October 8 , 2015

Temporary suspension of propriety

- Poll role shorn of insulation

Alapan Bandyopadhyay at the state election commission office in Calcutta on Wednesday. Picture by Sanat Kr Sinha

Oct. 7: The very nature of a "temporary" election commissioner goes against the spirit of a Supreme Court order that had said "state election commissions are to function independent of the state governments".

Citing a 1994 law that was passed when CPM leader Jyoti Basu was chief minister, the Mamata Banerjee government has para-dropped a serving IAS officer into the chair vacated by state election commissioner S.R. Upadhaya yesterday.

The 1994 law included the provision to address contingencies arising from "illness, death, resignation, removal and expiry of term". By no means can Upadhaya's departure be compared with the "resignation" mentioned in the law. He was intimidated and hounded out.

It is against such a controversial backdrop that the Mamata government appointed Alapan Bandyopadhyay, an IAS officer who was serving as transport secretary till yesterday, the "temporary" election commissioner.

An election commissioner appointed for the full term ceases to be in government service the moment he takes up the poll assignment. This provision - a safeguard meant to insulate poll chiefs from the pulls and pressures of what would have been their future employer - applies to the chief election commissioner of India as well.

The Chief Election Commissioner and Other Election Commissioners Act of 1991 says: "A person who, immediately before the date of assuming office as the Chief Election Commissioner or an Election Commissioner was in service of Government, shall be deemed to have retired from service on the date on which he enters upon office as the Chief Election Commissioner or an Election Commissioner...."

The 1994 Bengal law is silent on this aspect when it comes to "temporary" election commissioners, which means they can resume government service after their assignment at the poll office, which is not time-bound, is over.

This also means the "temporary" commissioner can be called on to take action against government officials who may be his future bosses when he resumes his government service - a clear conflict of interest.

Today, asked about the possibility of his resignation, Bandyopadhyay, the "temporary" commissioner, said: "No, no, not at all. I still have six years of service. As you all have very correctly been pointing out, I am 54 and will retire in 2021. This is temporary. Once this is over, I will go back to wherever the government deems fit."

Asked about the controversy over his appointment, Bandyopadhyay said: "The government of West Bengal, invoking a particular legal provision, has instructed me to carry out for the time being a duty to enable the completion of an ongoing process, the future of which had been put to question by a present set of given circumstances.

"Now there could be moral issues in the civil society. What is my contribution to that controversy, you tell me? Kindly do not drag me into it. Since when has lawful compliance to a lawful order issued by a lawfully constituted government by a law-abiding civil servant become an offence?"

He added: " Yatha niyukto asmi tatha karomi (I will work according to the needs of my place of work).... It's in the Bhagvad Gita."

Bandyopadhyay has been relieved of his responsibilities as transport secretary for the period he serves as the temporary state election commissioner. According to officials, the state government took the step in view of questions raised by the Opposition. But little prevents him from resuming the job once the "temporary" phase is over.

In 2006, a three-judge bench of the Supreme Court had ruled that "... it is clear that the powers of the State Election Commission in respect of conduct of election is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral roll for, and the conduct of, all elections to the panchayats and municipalities. "

The Supreme Court was hearing a case involving the Ahmedabad municipality.

Besides, Article 243K, which deals with local elections, says that a "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...." A high court judge can be removed only through impeachment by Parliament.

Going by the logic of the 1994 Bengal law, if there is a vacancy in the high court, the government may deem it fit to appoint an IAS officer or a state-empanelled lawyer as a "temporary judge".

The 1994 Bengal law has never been tested in a court, probably because of the general laxity in protecting institutions in the state and also because a "temporary" election commissioner was never appointed before.

"This is perhaps the first time in our history that there is an acting election commissioner appointed on account of such reasons," former chief election commissioner T.S. Krishnamurthy told The Telegraph .

Former Supreme Court judge Justice A.K. Patnaik said the state election commissioner should always be an independent person but added that he was not familiar with the issue in Bengal.

Justice Asok Kumar Ganguly, a former Supreme Court judge, said: "This (the Bengal clause) is unconstitutional. It appears that it was not challenged in the court only because such a situation had never arisen."

The Opposition Left appeared to be treading with caution, probably because the Bengal law was passed when it was in power.

Asked if the CPM would move court, CPM state secretary Surjya Kanta Mishra said: "We are having talks with our legal experts. Let's see whether the appointment can be challenged or not, whether the government's move is unconstitutional or not."

Told that the Left government had passed the law, Mishra said: "We know that. But it's a question of morality and ethics. We have always appointed state election commissioners who were either retired chief secretaries or retired additional chief secretaries. Or people of such ranks who had one or two years of service left."

Additional reporting by Amit Ukil

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