The article is written by Vishruti Chauhan pursuing BA LLB from Symbiosis Law School, Hyderabad. The present article focuses on the Andhra Pradesh ordinance Act. The judgment given by the court has been explained in this article, along with various case laws. The article has also attempted to provide with the definition of legal terms for common understanding. 

Introduction

The Andhra Pradesh Ordinance Case (N. Ramesh Kumar & others v. The State of Andhra Pradesh) was decided by Justice J.K. Maheshwari & Justice M. Satyanarayana Murthy on 10th June 2020. The case stirred a question on the power of the Government to make laws. The Andhra Pradesh Government had introduced an ordinance and changing laws with respect to the State Election Commission (SEC). Under the tense situation of local elections and the stress of pandemic COVID- 19, the State Government changed the law which ceased the tenure of the present State Election Commissioner. In the present case, Ordinance No. 5 of 2020 The Andhra Pradesh Panchayat Raj (Second Amendment) ordinance, 2020 was challenged which substituted Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (APPR). Subsequently, there was a change in the Andhra Pradesh Panchayat Raj (Salaries & Allowances, Conditions of Service, Tenure of State Election Commissioner) Rule. The consequences were that it made Dr N. Ramesh Kumar (State Election Commissioner) (SEC) cease to hold his office prior to his completion of the tenure and the Government appointed Justice V. Kanagaraj (retired judge of High Court of Madras) as the SEC for a period of three years. Dr N. Ramesh Kumar challenged this in the court of law and along with his petition several other petitions and Public Interest Litigations were also filed. This case is very important in the aspect of the powers of the State Government in appointing and passing such ordinances. The High Court of Andhra Pradesh has very aptly dealt with various factors involved with the constitutionality of such section which has been amended. There are various constitutional principles which have been discussed along with the power of Government and the Executives in terms of involvement in the Election Commission. 

Definitions and doctrines

1. Ordinance- In its literal meaning, an ordinance is defined as an authoritative order. Under Article 123 of the Indian Constitution, the Executive i.e the President is provided with law-making power in a case when either of the two houses of the Parliament is not in session. Such an ordinance has to be promulgated in case of emergency situations or in a cause where immediate action is required.     
2. The doctrine of Colourable legislation- it is based on the Doctrine of Separation of Powers and means that what cannot be done directly is done indirectly. It refers to a situation where the legislature seems to do an act within its power but actually crosses its boundaries. It means an act which is done indirectly because it could not be done directly.   
3. Judicial Review- It means to interpret laws and the Constitution in place. It is the power of the Court to review any such law in place for the purpose of justice. In cases, where there is no means for the challenge, judicial review is available. Judicial Review is important to secure fundamental rights and to safeguard the public interest.   
4. The Doctrine of Pleasure- It is a common-law rule and states that the Executive has the power to remove any civil servant from his post even without stating a cause. However, under the Constitutional provisions of India, Judges of Supreme Court (under Article 124) and High Court (under Article 148(2)), Chief Election Commissioner (under Article 324)and the Comptroller and Auditor General of India (under Article 317) are exempted from this Doctrine.  
5. Public Interest litigation- It can be filed in a court of law where the legal injury is caused to a person or a determinant class of persons due to the violation of constitutional or legal right. In a petition to be filed, it is necessary that the party filing the petition should have some legal or constitutional injury, but through PIL any person can file a petition in court for a cause which affects a large number of people or of a constitutional or fundamental injury.    
6. Void ab Initio- It means something which is void or which is invalid from the beginning itself. This phrase declares that something has been non-existing from the beginning. 
7. Locus Standi- It means legal standing. 
8. The Basic Structure Doctrine- It is a judicial principle which describes that any amendment or law cannot change the basic features and principles of the Constitution.      

Facts of the case

• Elections were to be held in the State of Andhra Pradesh of Panchayats, local bodies and municipal bodies. 
• The first phase of the election was completed on 14 March 2020.
• The petitioner, as well as the respondent, agreed to the fact that some unprecedented violence broke out during this first phase of the election.
• After that, the pandemic situation created chaos all over the country, and the SEC i.e. the petitioner issued a notification on 15 March 2020 to postpone the remaining election of local bodies for six weeks or till whatever time the situation becomes stable.
• A writ petition was filed by the Government of Andhra Pradesh in the Supreme Court of India challenging the step taken by the petitioner of cancelling the election.
• The Supreme Court refused to interfere with the decision of the State Commission but stated that the Commission should take such decision by informing the Government. 
• Thereafter, The State Government of Andhra Pradesh amended Section 200 of the APPR Act by way of ordinance.
• Such amendment ceased the term of the petitioner as the term of such office was amended to be for three years from five years. 
• Subsequently, the Government also appointed a retired judge as the new SEC. 
• The petitioner challenged this in the court of law that the step taken by the Government is arbitrary, mala fide, unconstitutional and has been done with a sole intent to remove the petitioner from the post.     

Arguments by petitioner

The petitioner challenged the amendment that has been made by the respondent by way of the ordinance. The petitioner argued that the step taken by the government is mala fide, arbitrary and unconstitutional. The Government has taken this step for the sole purpose of removing the petitioner from the office of the State Election Commission. The petitioner contended that the violence that broke out during the first phase of election in the state was alleged to be done by the ruling party only. When the petitioner decided to cancel the remaining phases of election, the ruling party was not happy with it and they even filed a case against such a decision in the Supreme Court of India. There was no objective basis for the Government to amend such an Act during the course of the pandemic. Further, the petitioner also argued that the Government has also exercised its power without it being in an emergency situation as under Article 213 of the Indian Constitution. The petitioner also contended that it is violative of Article 14, 21 and 243K (2) and 243ZA of the Indian Constitution. It was contended that the Government has exercised the doctrine of colourable legislation under Article 226 of the Constitution in a mala fide manner.     

Arguments by respondent

The Respondent submitted that the objective behind bringing such ordinance was to secure the Constitutional goal of free and fair elections. It is the duty of the State that the elections should be held without any bias and in a free manner. So to achieve such objective of heralding such electoral reforms to conduct the election in a free and fair method, far from any influence, this step was taken. The respondent further submitted that the Government is not targeting any one person through this amendment and it has been done for the better execution of elections with a power that is invested in the Government. It was submitted that it is in consonance with 73rd and 74th Amendment of Constitution and Article 243K that the State has enacted Section 200 of the APPR Act. 

The State further submitted that there has been an amendment in the tenure aspect of the election commission as the Government took into consideration all the aspects and events of the election in the last decade and to amend the criticism of the functioning of the SEC that has been engulfing for such a long time. The changes have been done with a bona fide view so that there is a fair composition of SEC. Further, the government argued that since the legislation is not in session and there is a need for immediate action and thus such action was taken in an emergency. The Government argued that they have rightly exercised their power under Article 213 of the Indian Constitution and that it is necessary to implement the reform as the proviso to Article 243K does not include ‘tenure’ in its ambit. Furthermore, the Government also argued that the other third party petitions and Public Interest Litigation should not be allowed as they do not deserve adjudication.  

Issues 

1. What is the scope of judicial review in the exercise of the power under Article 226 of the Constitution?
2. What are constitutional provisions which govern the appointment of SEC in contra-distinction to the provision governing the appointment of CEC and whether the expression ‘Condition of Service’ and ‘Tenure of Office’ under Article 243K (2) include ‘Appointment’ as well?
3. What is the Statutory friction in reference to SEC in the APPR Act, The Andhra Pradesh Municipalities Act, 1965 (the APMC Act) and the Greater Hyderabad Municipal Corporation Act, 1955 (The GHMC Act)?
4. Whether the State legislature has any power to make any law regarding the prequalification and appointment of the SEC or does the power exercised by the Council of Minister in aiding advice to the Governor in the promulgation of ordinance prescribing such appointment constitutes fraud?
5. Whether in the facts of the case there are any circumstances which made the Government take such immediate action to promulgate the ordinance in question or is it actuated by oblique reasons?
6. Whether the term ‘ceased to hold office’ as per Section 200 (5) of the APPR Act in the Act may lead to the removal of the petitioner, SEC, and is it permissible by ignoring the immunity prescribed under the Constitution.
7. Whether the appointment of the petitioner which was made for a tenure of five years as SEC, may confer any vested right to continue him up to such term amidst the promulgation of the said ordinance? 
8. Whether the other petitioners in the PILs and other writ petitions have locus standi to maintain petitions challenging such ordinance along with the writ petition filed by the aggrieved person?    

Analysis of the Judgment

Scope of Judicial Review

The High Court took into consideration the question of judicial review in the present case.  In the case of R.C. Cooper v. Union of India, the High Court held that the president’s decision could be challenged on the grounds that ‘immediate action’ was not required and the ordinance has been passed just to avoid discussion in the debates. A new clause was added in Article 123 of the Constitution which reopened the possibility of judicial review of the president’s decision. In the case of Indra Sawhney v. Union of India, the court held that there is no particular standard given for judicial scrutiny and the political executive decisions, administrative review and applying wrong criterion or exclusion of classes were all deemed to be within the scope of judicial review. 

Furthermore, in the case of M. Nagaraj v. Union of India, the court held that in a case where the basic structure of the Constitution is violated or any systematic principles connected to the Constitution is affected, then it is open to the scrutiny of judicial review. Further, in case of Krishna Kumar Singh v. the State of Bihar, a Constitutional bench of the High Court was formed which held that in a case, where it has to be scrutinized whether the President or the Governor has promulgated an ordinance influenced by an ulterior motive, then such act by two constitutional authorities will result in a fraud on their powers, and the courts will have the authority of judicial review in such case. 

Moreover, in the same case, it was also observed by the court that there is no immunity available to the President under Article 123 and the Governor under Article 213 from the scope of judicial review. The court in such cases does not have to test the relevancy or adequacy of the material but to scrutinize whether the satisfaction in a particular case amounts to fraud. 

By analyzing these judgments, it was held that, in the present case, there is a question of exercising the Governor’s power to take such an immediate action for which any urgent circumstances have not been described and are bound to be scrutinized and therefore, the powers of the Governor are not immune to judicial review and this power of judicial review is available to the High Court under Article 226 of the Constitution.

Constitutional provisions & inclusion of expression ‘appointment’

For the second issue in question, the High Court analyzed various provisions which concern the appointment of SEC and CEC. The appointment, as well as the whole structure of the Election Commission, has been made with utmost importance to conduct a free and fair election in a country which establishes a strong foundation for democracy. Article 324 of the Constitution specifies the power of superintendence, direction and control of the elections by the election commission. Part IX of the Constitution deals with the provisions for Gram Sabha at the village level including Panchayats at the village and other levels. Part IXA deals with the term ‘Municipalities’. Under Article 324 the powers to conduct such elections is with the Chief Election Commissioner (CEC) while under Articles 243K and 243ZA the powers lie with SEC to conduct elections to panchayats and municipalities defined under Part IX and IXA. 

Under the Election Commission of India, there is a Chief Election Commissioner and other commissioners as well who are appointed by the President from time to time. In the case of State, there is a single member i.e. SEC. In case of appointment of CEC, the power lies with the President of India to do so however, Section 324(2) clearly states that such appointment is subject to provisions of any law made in that behalf by the Parliament. In case of appointment of SEC, the power of appointing is vested in the Governor, although, it does not provide for any provision specifying that such appointment should be subject to provisions of law made by either Parliament or State legislature. 

Article 243K(2), however, states that the conditions of the service and tenure of the office of SEC are subject to the provisions of any law made by the legislature or by any rule the Governor may determine. The same condition applies for CEC in Article 324(5) where the tenure of office of CEC is subject to the provisions of Parliament. Thus, it was held by the court that the power of appointment under Article 324(2) and Article 243K(1) are to be exercised differently. However, in case of conditions of service and tenure, the provisions are similar and it can be determined either by the legislative body or rule made by the President or Governor as the case may be. 

The court has also emphasized the Constitutional Assembly Debates which has described the importance of a free will and non-interference of political party or government in appointment of CEC or SEC. The Report No. 255 of the Law Commission of India was also referred which stated about the ‘Electoral Reforms’ and clearly stated that the intention of the Constitution was to provide for a free and fair appointment procedure for SEC and it should be made as per the discretion of the Governor. Therefore, it can be inferred that in matters of appointment, the Governor is provided with discretionary power (Article 163 of the Constitution) but not the President of India. 

The court further noted that, in the present case, the Governor exercised its power under Article 166 (2) & (3) and formulated rules known as the Andhra Pradesh Government Business rules and Secretariat Instructions where it is divided into two parts and Part-II deals with the procedures of the Council constituted under the Article 163 of Constitution. Part II also defines that all cases referred to in this part shall be brought up before the Governor on the recommendation of the Council of Ministers and it is crucial to note that the matter of appointment of Election Commission was not specified in it. Thus, it is very much clear that the appointment of the SEC has to be made without the aid of the Government or Council of Ministers and by the discretionary power of the Governor under Article 243K (1). 

The meaning of the expression ‘conditions of service’ was also analysed. In the case of The State of Madhya Pradesh v. Shardul Singh, it was held that this expression means all the conditions that regulate the holding of a post by a person right from the time of his appointment till his retirement. In the case of M. Satyanarayana v. the State of Kerala, it was held that the word ‘and’ that has been used between ‘conditions of service’ and ‘tenure’ is a cumulative effect to fulfil all conditions which it joins together. In the case of J.S. Yadav v. The State of Uttar Pradesh, the court held that the express terms of service include the tenure of service. It was noted that, in the present case, under Article 243K (2) of the Constitution, there was no law made by the legislature of state regarding service. But The Government of Andhra Pradesh formulates rules of the salaries, allowances and conditions of service through power conferred upon them by Section 200 (3) of the APPR Act. Thus, the term ‘conditions of service and tenure’ as under Article 324 (5) and Article 243K (2) does not include the appointment of CEC or SEC. 

On the aspect of removal of SEC from the post, as per the proviso to Article 243K (2) of the Constitution, an SEC  can be removed from the office by the procedure that is prescribed for removal of a judge of the High Court as given under Article 217(1) of the Constitution.  The court concluded that the clauses that are provided under Articles 324, 243K and 243ZA are independent and do not overlap in their operation.

Statutory friction between the APPR Act, the APMC Act and the GHMC Act

The court focused on the constitutional spirit of APPR Act and discussed that the provision stating the recommendation of the State Government in the appointment of SEC is not in conformity with the Constitutional provision of Article 243K and that the Governor has discretionary power in the matter relating to the appointment of the SEC. Furthermore, restricting the tenure of SEC to three years is also not in compliance with the essence of the law. It referred to the Constituent Assembly Debates where it was discussed that the tenure of Election Commissioner should not be specified and even if done so it should be five years or maximum six years. This was done with an intention that the appointment of the SEC should be free from political influence; however, in this case, it is violating the principles of reasonable classification and intelligible differentia. Moreover, Section 200(5) is also arbitrary and violates Article 14 and is unconstitutional. 

Under the APMC Act, Section 10-A and Section 10-B carry out the same feature as Article 243K (1) in matters of superintendence, direction and control of preparation of the Electoral Rolls. Under the GHMC Act, Section 2 (51-a), State Election Commission has been defined as constituted in Article 243K of the Constitution. 

The court has compared the definition of SEC among these three Acts for the present case. The APMC Act and the GHMC Act acknowledges the provisions of SEC as constituted under Article 243K of the Indian Constitution and does not recognize the Election Commission as provided under Section 200 of the APPR Act. Through this analysis, the court held that the new appointment of a retired judge as SEC cannot be acknowledged as it has not been done according to Article 243K of the Constitution.      

Power of legislature and if a fraud has been committed by making the ordinance

It was analysed that under Article 246, which deals with the power of the State legislature, it is stated that the State can make laws on any subject matter which is prescribed under List II of Schedule 7 of the Constitution. In the present case, the Government has used Entry No. 5 of the aid list to bring the ordinance into force. However, the court held that Entry No. 5 of the said list focuses on the law-making power of the State regarding the municipal corporations, district boards, mining settlement authorities, improvement trusts and other local authorities and the matter about the appointment of SEC is not within its ambit. Thus, the order of the ordinance that has been approved by the Governor is without any authority and thus will amount to fraud on power. 

Further, if Article 243K (4) and Article 243ZA (2) is analysed, it provides for the power of the state legislature to make laws concerning matters which are related to the elections of the Panchayats subject to the provisions of the Constitution. The court held that the subject matter relating to the appointment of SEC is not in connection to the election of the Panchayats and thus does not fall within the scope of Article 243K (4) of the Constitution. Thus, the change that has been brought by the State Government on the subject of appointment and eligibility of SEC is beyond the legislative competence of the State. Further, it was held that such law made by the State out of its competence is violative to Article 14 and thus is illegal. 

Analysing the facts of the case

The court found that there was no public interest or constitutional necessity to take immediate action by the Governor to promulgate such an ordinance. There was no urgent or emergency situation in which such an action could have been taken. After analysing the facts and circumstances of the case, the court held that it is very clear that such ordinance has been made with a sole purpose to remove the petitioner from the posts of SEC. It also held that the Governor has not exercised his power with due satisfaction under Article 213 of the Constitution and there were no circumstances as such which would have made him take such an immediate step. It was further added that in the matter of appointment and pre-eligibility, the State Government had no power to bring any ordinance and it is a fraud on power of the Constitution and such an action was taken without any public interest or necessity of any situation. The court has also briefed upon the principle of colourable legislation. It was held that in the jurisprudence of power, colourable exercise or fraud on legislative power or fraud on the Constitution defines that the legislation is incompetent to enact a certain law, however, there is a competency label stuck on it and it is called colourable legislation. In this case, the State legislature did not have the competency to bring such law and it is a violation of test of the class legislation under Article 14 of the Constitution.  

Analysing Section 200(5) of the APPR Act

Section 200 (5) of the new Act states that any person who is appointed as SEC shall cease to hold office after the commencement of the said ordinance. Article 243K (2) of the Constitution very clearly states that the SEC cannot be removed except in a manner as prescribed for a ground of removal of a Judge of a High Court. The court held that the doctrine of pleasure does not apply to the SEC and thus the post has immunity prescribed from removal. A similar issue was discussed in the case In Re Reference under Article 317 (1) of the Constitution where the office of Member of the Public Service Commissioner was discussed. The Court, in this case, held that such a post cannot be equated with other Constitutional post holders working under the pleasure of the Governor. In the present case, the post of SEC has been held to be similar to the member of the Public Service Commission and therefore, cannot be held to be working under the pleasure of the Government. In the case of T.N. Seshan v. Union of India, it was held that for the position of CEC, removal from the post must be based on intelligible and cogent considerations. In the case of State of Assam v. Akshay Kumar Deb, it was held that the meaning of ‘cessation’ is ‘removal’. Thus, the court held that such an ordinance has been made only to single out the petitioner and without any basis, a person has been appointed who is of 77 years of age and has retired fifteen years back which is against the constitutional morality. 

Moreover, it is a settled law that any amendment which is made should not be given retrospective effect as it takes away the vested rights of any person by such amendment. In this case, the SEC had the vested right to continue his term for five years and bringing such ordinance which ceases the term of his office, will affect the subsisting right of the SEC. 

Vested Right of the petitioner

The High Court by discussing the above-mentioned issues held that it is very clear that the SEC has to complete the whole tenure of five years and there is only one way for the removal and that is through impeachment. Therefore, such an ordinance which directs a provision contrary to the law is void ab initio. The court relied on the judgments of Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, Mohinder Singh Gill v. The Chief Election Commissioner and T.N. Seshan v. Union of India and held that SEC has an ‘indefeasible right’ to conduct a free and fair election and can be removed only by the way of impeachment and therefore, such removal by the principal Secretary is unconstitutional and illegal.

Maintenance of other writs, petitions and PILs

A PIL is only entertained by the court when the question of law in the subject matter is of substantial public interest and if not addressed may cause genuine harm to the public. The court analysed that the genesis of a PIL lies in Constitutional obligation of the courts to ensure that justice is served to all sections of people and the fundamental rights hold a proper meaningful stature in the society. In the case of B.P. Singhal v. Union of India, where the issue of appointment and removal of Governor was in question, the issue of maintainability of PIL also came up and the court held that the petitioner had no locus standi to maintain petition concerning the prayer claiming relief for benefit of individual Governors but it was allowed for Scope of Article 156(1) of the Constitution and the limitations upon the doctrine of pleasure. 

For the present case, the court analysed the constitutional obligation of the Courts and the Basic Structure Doctrine. It was held that it is a constitutional and moral obligation that to keep the democracy active, there should be fair and free elections. Free and fair elections have been recognized as a part of the basic structure of the Constitution in the case of People’s Union for Civil Liberties v. Union of India. Thus, it was held that in a case, where constitutional duty and morality are being infringed upon by the removal of a person responsible for conducting the free and fair election and a new appointment is being made without giving any justification, it is an attack on the essence of the basic structure of the constitution. Therefore, for such an act which affects democracy and the basic structure of the constitution, a PIL can be entertained. There is a locus standi of all the PIL and writ petitions. 

Conclusion  

Thus, the High Court concluded that:

1. The appointment of the SEC can only be made by the Governor under his discretionary power as prescribed under Article 243K (1) of the Constitution. 
2. Under Article 243K (2) the term ‘conditions of service and tenure of office’ is different from the term ‘appointment’ and does not include it within its ambit. 
3. The State Government has not any power in terms of making an appointment of SEC or prescribing a pre-eligibility criterion. It has power only concerning the ‘conditions of service and tenure of office’. 
4. An SEC appointed under the amended Act cannot carry out the functions of direction and control and cannot conduct the elections. Such an appointment has to be made by the Governor under Article 243K of the Constitution. 
5. There are no satisfactory reasons for which the Governor had to take such a decision and the power so exercised is actuated by oblique reasons. There was no urgent or emergency situation to take such an action. 
6. The ordinance in question is thus set-aside as it does not qualify the test of rationality and reasonableness under Article 14 and is passed in the legislature by fraud on power. 
7. The petitioner has vested rights for completing the tenure of five years which cannot be taken away. Such a cessation of office provided by Section 200 (5) of the amended Act is not per law. 
8. The petitions and writs, as well as PILs which were filed challenging the said ordinance, were found to be maintainable. 
9. The Court set aside all the notifications and amended acts thereof. 
10. The respondent was directed to resume the post of the petitioner as SEC along with consequential benefits.   

This decision is important in many aspects. The importance of the independence of the State Election Commission has been very well discussed. The court has taken into account the political influence one can have upon the Election Commission that can destroy the whole purpose of free and fair elections. Alongside, various doctrines and by examining various judgments the High Court of Andhra Pradesh gave the judgment in favour of the petitioner.

References

• https://images.assettype.com/barandbench/2020-05/38274cc4-233a-496f-9441-53b60debc5af/Andhra_Pradesh_SEC_case___High_Court_Judgment___May_29.pdf
• https://www.thehindu.com/news/national/andhra-pradesh/andhra-panchayat-raj-ordinance-is-actuated-by-fraud-high-court/article31709674.ece
• https://www.indialegallive.com/top-news-of-the-day/news/sc-issues-notice-on-ap-govt-plea-against-andhra-hc-order-quashing-ordinance-on-state-election-commissioner
• https://indconlawphil.wordpress.com/2020/06/14/guest-post-the-andhra-pradesh-ordinances-case-towards-substantive-judicial-review/

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