After the single bench judge passed a stay Order, SEC went to Vacation bench under a Writ Appeal. Vacation Bench did not find the reasons stated by SEC to hear it urgently palatable. So it adjourned the hearing to Regular Bench comprising Honourable the Chief Justice.
AP State Election Commission Vs Government of Andhra Pradesh on 12 Jan 2021Then the Regular Division bench had set aside the stay order of single-bench judge. Some key snippets follow:
From Para 32 and 33,
32. 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.
33. The materials on record, including the letters referred to by the learned Advocate General, show that the Commissioner, State Election
Commission, had imputed motives to the State Government in the matter of holding of election, that too, in a somewhat intemperate language, which is best avoidable. 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.
From Para 39,
39. A perusal of the above would go to show that the Commissioner addressed the issue of vaccination programme as raised by the State Government. The Commissioner may not have agreed with the views expressed by the State Government in respect of holding of elections. But, as the consultation did take place, it cannot be said, as held by the learned single Judge, albeit prima facie, that the impugned order dated 08.01.2021 was not passed in consultation with the State Government in terms of the order of the Hon’ble Supreme Court passed in W.P.(C).No.437 of 2020 and the order of this Court in W.P.No.22900 of 2020. The learned single Judge did not assign any reasoning as to in which respects the Commission failed to consider the inputs supplied by the State Government objectively. No prima facie reasoning has also been assigned as to how the decision of the State Election Commission to conduct election hampers and creates hindrance in the vaccination process. It was the considered decision of the Commission that the objectives of the local body elections and vaccination programme could be harmonised and that Category-I and Category-II vaccinations will not affect the local body elections in any case and it is on the aforesaid premise, the Commission favoured completing the Gram Panchayat Elections before launch of Category-III vaccination which would account for more than 93.00 lakhs of people.
And then from Para 41, 42, 43, 44 and 45,
2021-01-21 AP State Election Commission Vs Government of Andhra Pradesh Edited41. A perusal of the above would go to show, amongst others, that the Court must guard against any attempt at retarding, interdicting, protracting or stalling of the election proceedings.
42. In Kishansing Tomar (supra), the Hon’ble Supreme Court, in the context of the Municipalities, observed that the provision contained in Article 243-U was inserted to see that there should not be delay in the constitution of new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provision has been suitably added to the Constitution. In that circumstance, the Hon’ble Supreme Court emphasised that it is necessary for all the State Governments to recognize the significance of the State Election Commission, which is a constitutional body, and that they shall abide by the directions of the Commission in the same manner in which they follow the directions of the Election Commission of India during the elections for Parliament and State Legislatures. It was also observed that in the domain of elections to the Panchayats and the Municipal Bodies under Part IX and Part IX-A for the conduct of the elections to these bodies, they enjoy the same status as the Election Commission of India. It was reiterated that the words “superintendence, direction and control” as well as “conduct of elections” have been held to be in the “broadest of terms”. The Hon’ble Supreme Court laid down that powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains and the State Election Commissions are to function independent of the State Governments concerned in the matter of their power of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities.
43. To recapitulate, as held in Election Commission of India (supra), 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 (supra), the Hon’ble Supreme Court had reiterated that discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused, certainly the Court has the power to strike down the act.
44. It would also be appropriate, at this stage, to take note of paragraphs 27 and 28 of Kishansing Tomar (supra):
“27. Article 243-K(3) also recognises the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission “such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1)”. It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned shall have to render full assistance and cooperation to the State Election Commission and respect the latter’s assessment of the needs in order to ensure that free and fair elections are conducted.
28. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandate.”
45. 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.
State Govt preferred a SLP here.
