Andhra Pradesh High Court Gives Nod For Gram Panchayat Elections As Per Election Commission's Schedule

A Division Bench of AP High Court comprising Chief Justice Arup Kumar Goswami and Justice C Praveen Kumar held that the order dated 08.01.2021 issued by the APSEC notifying the election schedule for the local bodies need not be interfered with as the facts and circumstances of the case does not warrant suspension of the order.

Background of the case:

The court was dealing with a Writ Appeal filed by the APSEC challenging the interim order dated 11.01.2021 passed by a single judge in W.P.No.1158 of 2021 suspending the election notification issued by the APSEC dated 08.01.2021 for Gram panchayat elections.

A petition was filed by the AP State Government challenging the election notification issued by the APSEC with averment that the notification was based on "consideration of material extraneous to record, arbitrary and irrational rejection of the views of the government, and on surmises, conjectures, and assumptions, vitiated by malice in law."

The single-judge bench in its interim order observed "Decision to conduct elections certainly hampers and create hindrance to mammoth vaccination programme taken up by the Union of India."

The single judge also observed that the SEC issued the impugned order "without preceded by any pragmatic decision, based on the decisional consultation with the state government", as mandated by the Supreme Court in State of Andhra Pradesh v. Andhra Pradesh State Election Commission, Writ Petition (Civil) No.437 of 2020.

The single judge further observed that the Court observed that "the SEC had failed to consider the inputs supplied by the government objectively, in its proper perspective."

Submission of the State Election Commission:

It was argued by Senior Counsel B.Adinarayan Rao, appearing on behalf of State Election Commission that the learned Single Judge was wholly in error in suspending the order dated 08.01.2021 issued by the State Election Commission.

He submitted that single judge came to a definite conclusion that APSEC failed to consider the inputs supplied by the State Government objectively even without adverting to the order dated 08.01.2021 passed by APSEC. He further submitted that the single judge came to the conclusion that conduct of election will hamper and create hindrance to the vaccination programme undertaken by the UOI without assigning any reason.

He submitted that the SEC had considered the views of the state government dispassionately while notifying the election schedule and the ultimate decision as to whether it is possible or expedient to hold the elections rests with the Election Commission.

He has submitted that the vaccination programme for Corona Virus will be an ongoing process for a considerable period of time and in that circumstance, it will not be correct to keep the democratic process suspended till the vaccination programme comes to an end.

Submissions of the state of Andhra Pradesh:

Advocate General S Sriram appearing for respondent State of AP in the Writ Appeal at the outset argued that the Writ Appeal under clause 15 of the Letters Patent Appeal is not maintainable as the interim order impugned in the Writ Appeal is not a Judgment, against which only a Writ Appeal lies.

Advocate General drew the attention of the court to a letter dated 28.10.2020 addressed by the State Election Commissioner to the Home Secretary, Government of India, to contend that the Commissioner had unwarrantedly attributed motive to the State Government ruled by the YSR Congress party that it was determined not to hold elections in his tenure, which is till March 2021, and this is what was uppermost in his mind while issuing the order dated 08.01.2021.

He submitted that State Government delegation was met by the SEC on 08.01.2021 and on that very day itself, the schedule of election was notified, which shows that commissioner had already fixed schedule and his meeting with the state government delegation was a mere window dressing. He argued that the apprehensions of the state government as to the logistical constraints because of the vaccination programme, were not looked into.

He has submitted that the State Government wants the election be postponed till the first phase of vaccination programme is completed.

Observations of the Bench:

Maintainability: On the aspect of maintainability of Writ Appeal the bench relying on Midnapore Peoples' Coop.Bank Limited and others v. Chunilal Nanda and others delivered by Supreme Court observed that '' that the interim order is not a routine order passed in the writ petition to facilitate the progress of the case till its culmination in the final decision and that it has the effect of granting final relief as prayed for in the writ petition without the matter being tested on merits and without determining the rights and obligations of the parties. The interim order has also affected vital and valuable right of the State Election Commission tocarry out the constitutional requirement ofholding election to the local panchayats. In that view of the matter, we are of the considered opinion that the interim order passed by the learned single Judge falls within the meaning of the word "judgment" and, therefore, this appeal is maintainable.''

Bad Faith: On the aspect of allegations regarding Bad Faith the bench in para 32 held '' By the order dated 08.01.2021, the State Election Commission had decided to fulfil its obligation to hold election, which is overdue by almost 2½ years. Thus, the Commissioner was acting on the legitimate exercise of power that he has. It is not explained to us how in pursuing a legitimate exercise, the Commissioner had been acting malafide in the sense of pursuing an illegitimate aim. In any event, the Court would be slow to draw adverse inference unless material of high order of credibility is placed before the Court regarding malafide, more so, when imputations are attributed to holder of an office discharging high responsibility such as the Commissioner of the State Election Commission.''

The bench further observed that "Only because of the fact that the Commissioner had articulated that the State Government was not willing to have the election conducted during his tenure and that a senior political functionary of the ruling party was canvassing that elections would be held in the month of April or May, it cannot be readily accepted, as argued by the learned Advocate General, that just to make sure that election is held during his tenure and thus, to prove a point, the election is announced by him, unmindful of the ground realities.''

Retarding, interdicting, protracting or stalling of the election proceedings:

The bench referring to the Election Commission of India ThroughSecretary v. Ashok Kumar and others delivered by Supreme court observed that '' that the Court must guard against any attempt at retarding, interdicting, protracting or stalling of the election proceedings.''

Power to take final decision must rest with Election Commission:

The bench observed at para no.43 ''To recapitulate, as held in ElectionCommission of India vs state of Haryana the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission. In Mohinder Singh Gill, the Supreme Court had reiterated that discretionvested in a high functionary maybe reasonably trusted to be used properly, not perversely. If it is misused, certainly the Court has the power to strike down the act.''

The division bench while allowing the Writ Appeal opined that '' Having regard to the facts and circumstances of the case as discussed above and in view of the law as it stands today, we are of the considered opinion that present was not a case warranting suspension of the order dated 08.01.2021, which has the effect of postponing the election process. Taking that view, we set aside the interim order passed by the learned single Judge."

The bench impressed upon the parties to the proceedings that both election and vaccination programmes being of vital importance for the people, the parties will make all endeavour to ensure that both the programmes are conducted smoothly and successfully.

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