Explained: Why Andhra Pradesh HC Struck Down Jagan Govt’s Controversial Ordinance, Ordered Reinstatement Of SEC

In a major blow to the Jaganmohan Reddy-led Andhra Pradesh (AP) government, the Andhra Pradesh High Court (HC) struck down the AP Panchayat Raj (Second Amendment) Ordinance (No.5 of 2020) and the consequential government orders 617, 618 and 619.

Through these, the government had cut short the term of the State Election Commissioner (SEC) from five to three years resulting in the expulsion of N Ramesh Kumar from the post.

The law was brought in by the ordinance route, and soon after V Kanagaraj, a retired judge of Madras High Court was appointed as the SEC.

N Ramesh Kumar approached the AP High Court against the removal by ordinance.

The chief minister Jaganmohan’s decision to kick out Kumar was reportedly based on latter’s decision to postpone the elections to urban and rural local bodies a few days before the polling because of the Coronavirus pandemic. Kumar held that the number of patients would flare up if the elections were held at the time.

The court quashed the order appointing retired judge V Kanagaraj as the new SEC and asked the state to immediately reinstate Kumar, a retired IAS officer, with immediate effect.

Why did the court struck down the ordinance?

Under Article 213 of the constitution, the state governments have the power to bring in ordinance, circumventing the normal procedure of bringing a legislation through the assembly.

The court agreed with Kumar that the Article 213 was not an absolute entrustment but conditional upon the satisfaction that the circumstances exist for such an action.

The court held that the government could bring an ordinance when immediate action is required in public interest, but it cannot be “allowed to be perverted to serve political ends, contrary to all democratic norms”.

The court concurred that the ordinance was brought only to appoint a SEC of chief minister’s choice, dismissing the government's claim that it brought the ordinance as part of local body election reforms and it was not targeted at Kumar.

The court said that the old rules regarding the tenure and service conditions of the SEC were in vogue for the last 26 years and were abruptly changed in “wholly arbitrary, discriminatory and capricious exercise of power contrary to constitutional spirit”.

The court also agreed with Ramesh Kumar's argument that the ordinance was in violation of Article 243-K which states that a SEC can only be removed in the same manner as provided for a judge of a High Court.

The court also said that a SEC could only be appointed by the Governor under under Article 243ZA and 243K(1) of the Constitution, and not merely through APPR Act. The SEC is a constitutional post holder and not a mere employee of the state government.

The court concluded that the ordinance was actuated by fraud on power and did not qualify the test of rationality and reasonableness.

How is SEC different from Chief Election Commissioner (CEC)?

The state election commission was provided for by the 73rd Constitutional Amendment Act 1992.

The Act stated that the superintendence, direction and control of the conduct of all elections to the panchayats shall be vested in the respective state election commission.

The commission consists of a SEC appointed by the governor of the state, who also determines his conditions of service and tenure of the office, in accordance to the law passed by the state legislature in that regard.

The conditions of service cannot be varied to his disadvantage after the appointment.

The court clarified that as per the constitution, the appointment of SEC shall be made as per discretion on the Governor, while President of India doesn’t have such discretionary power with regards to the appointment of the CEC.

The court said that while the state legislature or the union parliament could pass laws regulating the tenure and conditions of service of the SEC and CEC respectively, they do not include the appointment, eligibility or removal of either CEC or SEC.

Also, the court clarified that such laws cannot go against the Constitution which provides for appointment of the SEC by the governor, and removal like that of a HC judge.