Another slipper shot given to the State Elections Commissioner, who had been a stooge of the Chief Minister of AP.
Janasena Party Vs SEC AP and 2 Ors on 21 May 2021
The language of the judgment is clear that respondent No.1 herein was directed to re-impose MCC for four weeks before the notified date of polling. Instead of following the direction, respondent No.1 who took charge of the office on 01.04.2021, took decision to resume election process of MPTC/ZPTC in utmost haste even without looking into the order passed by the Hon’ble Supreme Court in W.P. (Civil) No.437 of 2020. The main grievance of the petitioners is that on account of issue of such election notification impugned in the writ petition without providing appropriate opportunity to make preparation campaigning in the elections by the contesting candidates, more particularly candidates of the petitioner in W.P.No.7847 of 2021, thereby the procedure adopted by respondent No.1 did not provide fair opportunity to contest in the election process to the candidates of the petitioner in W.P.No.7847 of 2021 and it is in violation of constitutional right, as held in Rajabala case (referred supra).
Indisputably, a direction was issued by the Supreme Court for re-imposing MCC for four weeks before the notified polling date. In fact, MCC is the Code for holding free and fair elections, which is the basic foundation for democracy. On account of hasty decision taken by respondent No.1, dishonouring the direction with scant respect, the petitioners candidates were disabled to take part in the elections effectively with readiness and the impugned notification scuttled the level play field to the contesting candidates of petitioners in W.P.No.7847 of 2021. The sudden narcissistic decision taken by respondent No.1, without looking into the order of the Hon’ble Supreme Court, would cause irreversible consequences and irreparable injury to the candidates of petitioner in W.P.No.7847 of 2021 to participate in the election process. The explanation offered in the counter filed by the Secretary of respondent No.1 is that the four weeks time is maximum time for re-imposing MCC and the State Election Commission can reduce the period of MCC. Therefore, based on the understanding of respondent No.1, notification impugned in the writ petitions was issued.
Secretary of respondent No.1 filed the counter. State Election Commissioner, who is the Constitutional authority, did not file verified counter for the reasons best known to her, who took a decision in utmost haste to resume the election process for MPTC and ZPTC on the day when she took charge of her office after retirement having enjoyed the extension of service for six months in the same Government as Chief Secretary. The State Election Commission did not explain as to how she could understand the direction of the Hon’ble Supreme Court.
In the present case, instead of reading the judgment of the Supreme Court in W.P. (Civil) No.437 of 2020, learned State Election Commissioner interpreted the judgment on her own and concluded that the four weeks time prescribed in the order is outer limit i.e. maximum period of MCC, thereby the State Election Commissioner can reduce it. Such interpretation by misreading or misunderstanding of order is totally misplaced and it is nothing but purposive interpretation, such interpretation cannot be accepted by any stretch of imagination in view of the law declared by the Supreme Court in the judgments (referred supra). Therefore, explanation offered by the Secretary to respondent No.1 in his counter is unacceptable.
The order passed by the Supreme Court in W.P.(Civil) No.437 of 2020 is clear and categorical. On reading the said order, even a common man who can read, write and understand the English language can easily find out the direction issued by the Supreme Court in the order. But, here the State Election Commissioner, who worked as Chief Secretary to the State being a senior most retired IAS Officer, could not understand the simple direction issued by the Hon’ble Supreme Court in right perspective, which creates doubt as to her suitability and fitness to the post of Election Commissioner.
The present State Election Commissioner issued notification impugned in the writ petition on the day when she took charge of the office even without looking into the purport of the order issued by the Supreme Court in W.P.(Civil) No.437 of 2020. It is an undisputed fact, such understanding of the Election Commissioner of the State is contrary to the directions issued by the Supreme Court. Obviously, such notification was issued limiting the MCC for a minimum period from 01.04.2021 till declaration of results as per schedule i.e. 10.04.2021, even without looking into the direction issued by the Supreme Court and such notification would scuttle the level play field of political parties and their candidates in the proposed election to be held on 08.04.2021. Such act of respondent No.1 can be described as democratic backsliding, it is also known as autocratization and de-democratization. It is a gradual decline in the quality of democracy and the opposite of democratization, which may result in the State losing its democratic qualities, becoming an autocracy or authoritarian regime. Democratic decline is caused by the state-led weakening of political institutions that sustain the democratic system, such as the peaceful transition of power or electoral systems. Although these political elements are assumed to lead to the onset of backsliding, other essential components of democracy such as infringement of individual rights and the freedom of expression question the health, efficiency and sustainability of democratic systems over time. One of the reason for such democratic backsliding is executive aggrandizement. The most important feature of executive aggrandizement is that the institutional changes are made through legal channels, making it seem as if the elected official has a democratic mandate. Some examples of executive aggrandizement are the decline of media freedom and the weakening of the rule of law (i.e., judicial and bureaucratic restraints on the government), such as when judicial autonomy is threatened.
Another reason for democratic backsliding is strategic harassment and manipulation during elections. This form of democratic backsliding entails the impairment of free and fair elections through tactics such as blocking media access, disqualifying opposition leaders, or harassing opponents. This form of backsliding is done in such a way that the elections do not appear to be rigged and rarely involves any apparent violations of the law, making it difficult for the Election observer to observe these misconducts. As such, the act of the respondents is nothing but democratic backsliding.
Normally, the IAS officers, who are working and achieved excellence in the career with their brilliance, were posted in the rank of Principal Secretary and above to look after the entire administration in the State and expected to act fairly and freely without any fear or favour; though worked in particular Government, they are being appointed in key posts such as State Election Commissioner since they possessed knowledge vested with power. Based on such brilliance and knowledge, the State Election Commissioner could not understand the purport of the order passed by the Full Bench of the Hon’ble Supreme Court, obviously for the reasons best known to the State Election Commissioner. The present situation is fine example of democratic backsliding. The understanding of the order of the Full Bench of the Hon’ble Supreme Court by respondent No.1 or by Secretary to respondent No.1 is not based on any reasoning, except non-application of mind by the concerned authority. The State Election Commissioner did not care even the direction issued by the Full Bench of the Hon’ble Supreme Court by over-reaching the order, made the direction lifeless and the direction became redundant. Hence, the contention of the learned senior counsel for respondent No.1 is hereby rejected. Accordingly, I hold that the impugned notification was issued in deliberate and intentional violation of the direction dated 18.03.2020 issued by the Supreme Court in W.P. (Civil) No.437 of 2020, which is in the nature of direction issued under Article 142 of the Constitution of India, and the same is binding on the State. The first respondent being constitutional authority is expected to maintain rule of law and act within the sphere of constitutional authority, but acted in clear defiance of the directions with almost disrespect to the order of the Hon’ble Supreme Court. Consequently, the notification impugned in the writ petitions is liable to be set aside. Accordingly, the point is answered in favour of the petitioners and against the respondents.