Andhra High Court Terms Ordinance On Ouster Of State Election Chief A ‘Fraud On Power’, But Jagan Reddy Government In No Mood To Yield

In another set back to the Y S Jagan Mohan Reddy government, the Andhra Pradesh High Court has set aside the appointment of former Madras High Court judge V Kanakaraj as the State Election Commissioner (SEC) and reinstated the ousted SEC, Nimmagadda Ramesh Kumar.

In a stinging rebuke of the Reddy government decision to replace Kumar overnight with an ordinance on 29 May, the High Court said it (ordinance) “is actuated by fraud on power and does not qualify the test of rationality and reasonableness specified in Constitution of India.”

This is among a slew of judicial setbacks for the Andhra Pradesh government, which earlier lost an appeal against Kumar’s decision to put off elections to local bodies due to the outbreak of novel Coronavirus (Covid-19) in the country.

The Andhra government, led by the YSR Congress Party headed by Reddy, has also lost a case to make English the medium of instruction in government schools, in the High Court.

The slew of rulings going against the Reddy government has led to criticism and threatening of judges on social media. Last week, the High Court ordered contempt of court proceedings against 49 persons, including YSR Congress Party member of Parliament, Nandigram Suresh.

A High Court bench, comprising of chief justice J K Maheshwari and justice M Satyanarayana Murthy, struck down the Ordinance number 5 of 2020 and consequential government orders 617, 618 and 619 that reduced the SEC’s term to three years from five.

Kumar was replaced within hours of promulgation of the Ordinance after his term was cut to three years. Despite the nation-wide lockdown, Kanakaraj managed to drive down to Vijayawada from Chennai to take charge as the SEC.

The judges concurred with Kumar’s argument that the Ordinance violated Article 243-K of the Constitution. The article states that a State election commissioner cannot be removed except in the same way a judge of a High Court is impeached.

Kumar’s counsel argued that the Reddy government promulgated the Ordinance just to oust him for putting off the polls. He said elections were put off as holding the polls could lead to the spread of Covid-19 pandemic.

The state government denied the charges and said the ordinance was promulgated to usher in reforms in local body elections.

The judges were unsparing and observed: “They (Government) have decided to remove Mr Ramesh Kumar due to not having connivance and brought narcissist Ordinance to remove him and bring the person of their choice. Therefore, the promulgation of Ordinance is actuated by oblique reason and on extraneous grounds.”

The judges wondered how the Reddy government did not think of electoral reforms until the local bodies polls were postponed. They said the Ordinance was promulgated to circumvent the impeachment process.

But the issue has not ended with the High Court ruling. Soon after the order, Kumar, whose tenure ends on 31 March next year, issued a note communicating that he had assumed office.

However, the circular was withdrawn by the Andhra Pradesh government on Saturday (30 May). The Reddy government also issued an order making IAS official G Vani Mohan as Secretary of the State Election Commission.

On Saturday, Andhra advocate General (AG) S Sriram addressed a press conference clearly indicating that the Reddy government does not want to implement the High Court ruling.

Sriram said the state has filed for a stay against the 29 May order and it had been communicated to Ramesh Kumar’s advocate.

The AG argued that as per paragraph 316 of the judgement, the SEC can be appointed by the Governor under the discretionary power under Article 243K(1) of the Constitution.

Though the state government had no power to appoint the SEC, Kumar’s appointment would still not be valid, Sriram countered.

Late on Sunday night (31 May), Kumar said that the tone and tenor of the AG’s statement in the press conference revealed that the state government did not intend to implement the High Court’s directions by citing “wholly untenable reasons".

“It is highly regrettable that the government continues to show its utter disregard to the independence and integrity of the institution of SEC. The stand taken by the State government is in clear violation of the directions and judgment of the AP High Court,’’ Ramesh Kumar said in a statement.

Kumar said he issued the note on resuming his duty since the office of SEC could not have remained unoccupied after Kanakaraj’s appointment was quashed. He said the state government was violating the High Court order and he would file a contempt of court case.

The last word has not been said on the SEC controversy in Andhra Pradesh yet.