The Ordinance in Question
The ordinance Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 passed on April 10 made the following changes:
- Firstly, only the appointment of a retired High Court Judge as the State Election Commissioner. Prior to the amendment, a retired bureaucrat could hold the post;
- Secondly, reducing the term of the SEC from five years to three years;
- Thirdly, the termination of the term of the existing SEC;
- Fourthly, the appointment of a new SEC.
The passing of this ordinance led to termination of N Ramesh Kumar’s term despite of his appointment for 5 years. Retired Madras High Court judge, Justice (retd.) V Kanagraj was appointed as the new SEC, in his place.
The Order of the Andhra Pradesh High Court
On May 29, the high court had struck down the Ordinance the Y S Jagan Mohan Reddy government passed on April 10. The Bench of Chief Justice JK Maheshwari and Justice M Sathyanarayana Murthy stated that it violates the “test of rationality and reasonableness” specified in Article 14 of the Constitution of India.
Therefore, this decision of the High Court led to the reinstatement Dr N Ramesh Kumar as the State Election Commissioner, who had to leave the post on April 10 due to the passing of the ordinance.
Arguments by the Andhra Pradesh Government
Senior Counsel Mukul Rohatgi, Shyam Diwan and Rakesh Dwivedi represented the State Government. Senior Counsel Harish Salve, CA Vaidyanathan and PS Narasimha represented Ramesh Kumar. The State asserted before the Apex Court that these changes were imposed to make the functioning of the State Election Commission transparent and efficient.
The State contented that the High Court order was flawed as the Governor has the power of appointing the SEC. Moreover, it is stated in the Articles 243K(1) and 243ZA of the Constitution; that the Governor has the power of appointing the Chief Election Commissioner on the aid and advice of the Council of Ministers and not otherwise.
Supreme Court’s Decision
The Bench consisted of Chief Justice of India SA Bobde and Justices AS Bopanna and Hrishikesh Roy. The Apex Court questioned Andhra Pradesh Government’s motives to pass such an ordinance believing that the motives were not innocent.
Chief Justice Bobde remarked, “We are not satisfied that your motives were entirely innocent. How can you pass an ordinance like this?”
The Court then refused to pass a stay order on the High Court’s decision. Also, the court has asked for a response from the State Election Commission. The matter will be next heard after two weeks.