Thursday, May 6, 2021

SC stays AP HC order describing it ‘disturbing’

  • AP govt. petition says it is judicial adventurism on part of HC
  • HC cannot exercise powers it does not have
  • Questioning building of a guesthouse amounts to violation of Constitution


New Delhi: The Supreme Court on Friday described the order issued by Andhra Pradesh High Court “disturbing.” It stayed the HC order intending to embark on a judicial inquiry into whether there is a constitutional breakdown in the State machinery under the government headed by Y.S. Jagan Mohan Reddy. The HC wanted to know if the conditions in the State warrant imposition of President’s rule.

Has anybody seen an order like this before?
“Has anybody seen an order like this before? As the apex court, we find this disturbing. Issue notice, stay. List immediately after vacation,“ Chief Justice of India Sharad A.Bobde observed. Justice Bobde heads a three-judge bench hearing the petition filed by AP government.
“Why the High Court should go into whether there is a constitutional breakdown in the State,” asked Solicitor General Tushar Mehta who argued on behalf of AP government. The AP government was represented by advocate Ahsan Nazki who said it was not up to the High Court to enquire and recommend President’s rule in the State.

This power vests in the executive
It is Article 356 that deals with failure of constitutional machinery in a State. This power (to impose President’s rule) exclusively vests in the Executive. The power in this regard, like sending a report either to the Hon’ble President or to the Hon’ble Governor or to record a finding in that regard, cannot be exercised by the judiciary.” The High Court had suo motu summoned State counsel to assist in deciding “whether in circumstances prevailing in AP, the court can record a finding that there is constitutional breakdown in the State or not.”

Habeas corpus petitions
The High Court while hearing over 14 habeas corpus petitions filed by detained individuals, has, on October 1, asked counsel appearing for the State to come prepared to ‘assist the court as to whether in circumstances, which are prevailing in the State of Andhra Pradesh, the court can record a finding that there is constitutional breakdown in the State or not.”
“Question framed by the High Court is not only unprecedented, but is also uncalled for, violative of the basic structure of the Constitution and, it is most respectfully submitted, grossly misconceived,” reads the appeal of AP government.

AP CM’s battle against the HC
The YS Jagan Mohan Reddy government has been involved in an open battle against the State High Court. The chief minister wrote a letter to CJI complaining against the attitude of the chief justice of AP HC and some judges. He also complained against Justice NV Ramana who is likely to be promoted as chief justice of the Supreme Court in a few months. Jagan Mohan Reddy clearly mentioned that the former chief minister Nara Chandrababu Naidu has been using his connections in the judiciary to create trouble for his government.

Doctrine of separation of powers
The AP government submitted to the SC that an application to recall the October 1 order was not taken up by the HC.
The State government in its petition against the HC order relating to the construction of a guest house, filed on Wednesday, said, “The Andhra Pradesh High Court is taking over the executive functions in the State in violation of doctrine of separation of power.” The High Court grossly erred in assuming to itself the power of deciding whether or not the State should construct something as innocuous as a guest house.
“In doing so, the Hon’ble High Court has completely ignored the warning that this Hon’ble Court has, time and again, sounded advising the Hon’ble courts to respect the other co-equal organs of the State and to refrain from assuming such powers to itself,” the plea said. The petition has assailed a November 2 order of the High Court directing the State government to submit plans and budget estimates of the State guest house proposed in Visakhapatnam.
The appeal by Y.S. Jagan Mohan Reddy government, filed by advocate Mahfooz Nazki, contended that the High Court has “virtually taken over the executive functions of the State and has seriously violated the doctrine of Separation of Powers.”

Guesthouse in Visakhapatnam
A three-judge bench of the AP High Court headed by Chief Justice JK Maheswari had said that the petitioners could raise their objections, once the government furnished the details of the guest house project, which is alleged to be the part of project of making Visakhapatnam the executive capital of the State.
The High Court earlier had said that the petitioner could bring to its notice if the government envisaged the construction of the Chief Minister’s camp office in furtherance of its agenda to shift the capital to Visakhapatnam. The HC was seized of the government’s plan to go for three capitals.
The AP government’s plea before the Supreme Court states that the High Court order amounts to “judicial adventurism” and upsets the Constitutional balance between different co-equal wings of the government.

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