On May 29, 2020, the Andhra Pradesh High Court quashed a recent Government ordinance which reduced the tenure of SEC from 5 to 3 years. As a result, Dr N. Ramesh Kumar is being reinstated as State Election Commissioner.
Brief Facts of the Case
The State Government enacted the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020, on 10th April. Additionally, it framed the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020. The impugned ordinance reduced the tenure of the State Election Commissioner (SEC) from five to three years. It also amended its eligibility criteria. Consequently, only a former high court judge would have been eligible for the post of SEC. This resulted in the removal of Ramesh Kumar from the office of SEC.
This ordinance was a result of a tussle between the State Government and Ramesh Kumar. Dr Kumar as SEC postponed the local body elections of the state due to the COVID-19 pandemic. The Government opposed his decision and approached the Supreme Court. The Supreme Court refused to interfere with the decision of the SEC in the matter. Following these incidents, the Government came up with the ordinance to oust Dr Kumar from his position. It appointed ex-Madras High Court Judge, Justice (Retd.) Kanagaraj as the new SEC.
Ramesh Kumar and other politicians challenged this ordinance and the appointment of J. (Retd.) Kanagaraj as new SEC before the Andhra Pradesh High Court. The Court was to decide whether the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 was valid under Constitution or not.
Dr. Kumar argued that the power under Art. 213 of the Constitution to promulgate ordinances is conditional in nature. He argued that the ordinance violated Article 243K. According to it, the removal of SEC happens in the same manner as provided for judge of the High Court. The ordinance, amendment to Section 200 of the impugned Act, removing Dr Kumar, and appointing J. (Retd.) Kanagaraj was thus declared a colourable exercise of power. The Court deemed it unconstitutional and impermissible. It found merits in the petitioner’s arguments.
The State argued that the ordinance was being passed to secure free and fair elections. It further stated that the functioning of the erstwhile SEC was not adequate. As a result, a series of allegations were made by all political parties from time to time. The Government deemed it as an imminent need for reform.
The Court ruled that the government actuated the ordinance by fraud on power. It decided that the ordinance does not qualify the test of rationality and reasonableness under Art. 14 of the Constitution. The bench said that procedural irregularity is present in the appointment of J. (Retd.) Kanagaraj as new SEC. It held that Article 243K grants Dr Kumar the right to function as an SEC for the tenure of five years. No order can remove him before the completion of his tenure. The Government can remove the SEC by following the procedure given under proviso to Art. 243K (2) of the Constitution. Thus, the Court observed that the Government Notification directing the cessation of office of Dr Kumar is not as under the law.
The Court pointed out that the Governor has not exercised his powers under Art. 213 of the Constitution. It observed that the requirements for ordinance issuance don’t exist in this case. It also stated, “The power so exercised is actuated by oblique reasons and on extraneous grounds, without having any material for the satisfaction of the Governor.”
Chief Justice JK Maheshwari and M Sathyanarayana Murthy decided on the matter. The Court struck down the impugned ordinance, reinstating Dr Kumar as the SEC. It also quashed the notification of the appointment of ex- Madras High Court Judge as new SEC.
The Court has also set aside Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020. The rules stated that SEC is appointed for three years. It also allowed re-appointment after the completion of three years. It also specified that the SEC will not hold office with effect from the date of effect of the ordinance.
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