Friday, May 7, 2021

How can Courts decide mala fides issues between two wings of State?

If State Election Commission (SEC) and State Government together act in good faith without mala fide intentions, the elections to local bodies can pass off peacefully. If mutually they do not have any trust or they have mistrust, the legality or constitutionality of the actions are challenged regularly. It is rather impossible for the Courts to identify the mala fides of each party behind their decisions and actions. The Government challenged notification of SEC as malicious (=guided by bad faith) and SEC challenged the decision of High Court single judge bench using the same ground, among others. Question is, how a court can consider exercise of legitimate power as mala fide?  It is easy to contend, but difficult for advocates to convince and complex for judges to decide on mala fides amidst the constitutional functions of two important wings of the ‘State’. It is unfortunate that like the Jagan’s Government and SEC, several state organisations and wings of the government are fighting each other at the cost of people’s money, in the highest courts of law. The Courts have to spend their quality time on these internal feuds or ego issues, instead of considering the breach of human rights requiring urgent attention.  How can courts decide challenges motivated by political rivalry and mala fides or mutual lack of trust?

The fight with SEC has been now taken to the Supreme Court challenging the order of division bench upholding the Election Notification for Gram Panchayats.

Political Writ Petitions

Political parties want elections to Assemblies should be held regularly after five years of term is completed. It is the duty of Central Election Commission to conduct general elections to Assemblies and Lok Sabha whenever term of existing house is completed.

As per Article 329, Constitution debars any other court in the land, to entertain a suit or proceeding calling in question any election to Parliament or the State Legislature. The proceedings must be initiated by an election petition and in such manner as may be prescribed by the statute.

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In a landmark decision, in Election Commission of India vs Ashok Kumar & Ors., (https://indiankanoon.org/doc/1247997/) the SC held that according to Article 329(b), the elections couldn’t be called in question until the process is not finished. While exercising the powers conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published, according to which the areas where the voting was to be done by ballot paper, the counting of such votes were to be done by mixing the ballot papers and not station wise. Writ petitions were filed before the High court against this particular notification, claiming that the counting must be done station- wise. The High court ordered in favour of the petitioner. Aggrieved by this order, the ECI filed an SLP in the Supreme Court. The Supreme Court overturned the order of the High court.

Sometimes the ruling parties at states ask for advancement of elections. There are instances where the ruling party dissolves the House in between and ask the CEC to conduct elections. The decision of executive Government is accepted depending upon the circumstances, public interest etc. Unless the state Government wants to advance elections with the approval of Central Government, there will be regular elections to Assemblies after every five years.

Politics & Local body elections

The attitude of the political parties is not the same about elections to local bodies. They find some or the other excuse to postpone the local body elections. It is a general phenomenon. If the ruling party does not want, there will not be elections. To avoid this, the Constitution was amended to ensure timely elections to the local bodies.

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Constitution mandates the establishment of local self-government institutions is the responsibility of the states (entry 5, List II, Seventh Schedule). But not all state governments were serious about empowering Panchayati Raj institutions as elections were not being conducted regularly.

Amendment to the Constitution 1992

The Constitution was amended in 1992 to define the term (five years) for these institutions. Simultaneously, another provision was made for setting up a constitutional authority, the SEC, on the lines of the EC to conduct regular panchayat elections.

The Article 243K of the Constitution provided for setting up of SECs. The 243K  article is drafted in almost the same language of Article 324 related to the EC. This means the SECs will have the same status and powers as the EC. The State Election Commissioner can only be removed via impeachment like the only method of removal for Central Election Commissioner. In 2006, the Supreme Court cleared the doubts and held the two constitutional authorities enjoy the same powers. In Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad, (https://indiankanoon.org/doc/1736371/) the five-judge Constitution Bench headed by CJI of Supreme Court gave on 19th October 2006 a categorical direction that state governments should abide by orders of the SECs during the conduct of the panchayat and municipal elections, just like they follow the instructions of the EC during Assembly and Parliament polls.

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The Courts cannot interfere in the conduct of polls to local bodies and self-government institutions once the electoral process has been set in motion. Article 243-O of the Constitution bars interference in poll matters set in motion by the SECs; Article 329 bars interference in such matters set in motion by the EC. Only after the polls are over can the SECs’ decisions or conduct be questioned through an election petition.

The law is clear and the powers for the SEC make them independent and it is the duty of the Government and machinery to support the SEC to complete the process of elections as per the notification. In Andhra Pradesh, every step in conducting elections to Panchayats is becoming a point of constitutional controversy and travelling to Supreme Court after single judge and division bench of High Court of Andhra Pradesh. When SEC deferred elections to Panchayats in March 2020, the Government and SEC were litigating each other up to the apex court. Thereafter, the Government tried to remove him appointing another as SEC, which again was escalated to SC and Nimmagadda Ramesh Kumar was restored as Commissioner. Ramesh Kumar’s attempt to complete the process of elections in 2021 is also facing the legal challenges.

The Jagan Mohan Reddy Government has no trust in Ramesh Kumar as SEC who was appointed by the Telugu Desam Party Government and has been waiting for his retirement. Initially, in 2020 when elections were notified, the Jagan Mohan Reddy Government did not object. It was going on. But when SEC decided to postpone the next phase of elections, the Government took it seriously and tried to fight against the SEC. It is a paradox that when Ramesh Kumar wanted to complete the process of elections, before he retires in a couple of months, the Government does not want it to be done under his supervision.  This trust deficit and dispute is becoming a personal as well as political feud and is costing the state very heavily.  AP Government challenged the notification alleging 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.”

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Is vaccination real reason?

A single judge bench agreed with the contentions of the AP Government and suspended the notification of the SEC on 11 January. The Judge observed “Decision to conduct elections certainly hampers and creates hindrance to mammoth vaccination programme taken up by the Union of India.” The Interim Order also said: “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 SEC had failed to consider the inputs supplied by the government objectively, in its proper perspective.”

The SEC’s challenge

The SEC challenged this order before division bench saying that the view of HC that elections would hamper vaccination process was without any reason. In this writ appeal SEC also said 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. On constitutional question, the SEC contended that the election notification and the process thereof ought not to be interfered by the court once they had been set in motion, citing the Supreme Court judgment in Election Commission of India v/s Ashok Kumar and Others, in which the apex court ruled that if questioning an election has the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completion of proceedings in elections. The SEC also argued that the HC judge should have noted the refusal of the Supreme Court of India and the High Courts of Karnataka, Kerala and Rajasthan to stay or postpone the local body elections in the backdrop of COVID pandemic, the plea said.

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Advocate General referred 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.

Mala fides not explained

The Bench of AP High Court consisting of Chief Justice Arup Kumar Goswami and Justice C Praveen Kumar on 21January upheld the Panchayat Election notification (08.01.2021) issued by the APSEC saying that it need not be interfered with as the facts and circumstances of the case do not warrant suspension of the order. The bench referring to the Election Commission of India Through Secretary 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. Care has to be taken to see that there is no attempt to utilise the courts’ indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say, that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material”.

Rejecting the argument based on bad faith, the bench in para 32 explained ” 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 mala fide 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 mala fide, 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 also noted in para no.43 ”To recapitulate, as held in Election Commission 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 BI, the Supreme Court had reiterated that discretion vested 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 bench 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.”

How can any court decide the question of mala fides or distrust between two wings of the state? If one government body fights with another government body always before the High Courts and Supreme Court, when do the latter find time to protect human rights of the people from the government?

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is former Central Information Commissioner and Professor of Law at Bennett University

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