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Not convinced motives were "entirely innocent": SC notice on AP govt's challenge to HC verdict against Ordinance that cut short SEC tenure

Shruti Mahajan

The Supreme Court today issued notice on a plea filed by the State of Andhra Pradesh challenging the decision of the Andhra Pradesh High Court to quash an ordinance that had cut short the tenure of State Election Commissioner from five to three years. (State of Andhra Pradesh vs Ramesh Kumar IAS and Ors)

The Bench of CJI SA Bobde with Justices AS Bopanna and Hrishikesh Roy issued notice on the plea while clarifying that there will be no stay on the implementation of the order of the High Court in the meantime.

The decision of the High Court to quash the ordinance had also led to the reinstatement Dr N Ramesh Kumar as the State Election Commissioner, who earlier had to leave the post on account of the ordinance effectively cutting his tenure short.

The Court today questioned the State of Andhra Pradesh over its motives to pass such an ordinance saying that the Court is not convinced that the motives were "entirely innocent".

The Court was told by Senior Counsel Rakesh Dwivedi that the State had, through the ordinance, struck down the provision under which Dr. N Ramesh Kumar was appointed as the SEC.

The Court then went ahead to issue notice on the plea. However, it clarified that there will be no stay on the High Court's order, despite strong arguments made for the same.

Senior Counsel Mukul Rohatgi, Shyam Diwan and Rakesh Dwivedi, briefed by Advocate Mahfooz Nazki appeared for petitioners.

SEC Ramesh Kumar was represented by Senior Counsel Harish Salve, CA Vaidyanathan and PS Narasimha, briefed by Advocate K Parameshwar. The matter has been posted to be taken up after two weeks.

In its appeal before the Supreme Court, the State of Andhra Pradesh has highlighted that the ordinance in question, i.e. the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 entailed the following key changes, i.e.:

  • Only a retired High Court Judge (being a trained judicial mind) could be appointed as the State Election Commissioner. Prior to the amendment, the post could be held by a retired bureaucrat;

  • The term of the SEC which was earlier for a period of 5 years was reduced to three years;

  • The term of the existing SEC was brought to an end;

  • A new SEC was appointed.

The State Government has asserted before the Supreme Court that these changes were necessitated, inter alia, to bring in "transparency and efficiency in the functioning of the State Election Commission.

These changes had led to the termination of Kumar as the SEC after three years of service, whereas he had been appointed for a five year term. In his place, retired Madras High Court judge, Justice (retd.) V Kanagraj was appointed as the new SEC.

Earlier, the High Court Bench of Chief Justice JK Maheshwari and M Sathyanarayana Murthy had struck down the ordinance stating that it was "actuated by fraud on power and does not qualify the test of rationality and reasonableness specified in Article 14 of the Constitution of India."

In the plea challenging this ruling, the State Government highlights that the High Court had proceeded on the erroneous premise that the power of appointment the SEC is vested personally with the Governor.

To contest this finding, the State submits that Articles 243K and 243ZA of the Constitution reveals that the power of appointing the Chief Election Commissioner is to be exercised by the Governor "upon aid and advice of the Council of Ministers and not otherwise."

The State has argued that the High Court's finding that the SEC appointment should be at the personal discretion of the Governor is, therefore, ex facie unsustainable.

Read Order:

State of Andhra Pradesh vs Ramesh Kumar IAS and Ors - 10.06.2020.pdf
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