NEW DELHI: Slamming the State government for appointing its Law Secretary as State Election Commission, the Supreme Court of India has also said that the SEC wanted to outreach the High Court by announcing elections when the hearing was on.
“First and foremost, it is important to note that the State Election, Commissioner is none other than the Law Secretary to the Government of Goa. The whole process of these elections is, therefore, faulted at the start so to speak as the SEC is not, in the facts of these cases, an independent body as is mandated by Article 243K,” the judgement by three member Bench of SC -Justice Rohinton Fali Nariman, Justice B.R.Gavai and Justice Hrishikesh Roy, reads.
The Court noted that that the SEC had itself postponed the municipal elections twice due to the COVID-19 pandemic raging throughout the State. On the second occasion, by the notification dated 14.01.2021, the SEC had itself postponed these elections till April 2021 or the election date which may be determined by the State Election Commission.
However, it said the Law Secretary’s letter dated 05.02.2021, calling upon the Director, Urban Development, to issue a reservation order under Section 10 of the Goa Municipalities Act was to do so “at an early date”.
“The Director, by an order passed one day before this communication i.e., on 04.02.2021, with lightning speed provided for reservation in all 11 Municipal Councils of women/SCs/STs and OBCs prompting the High Court to observe that due application of mind could not have been bestowed before issuing such an order,” it says.
“None of the writ petitions contained a prayer that would hold up any election programme. The only prayer was to strike down the aforesaid order so that the Director in issuing a fresh order would have to truly and faithfully carry out the constitutional mandate of Article 243T of the Constitution of India and the statutory mandate contained in Section 9 of the Goa Municipalities Act,” the Apex Court said.
Also, it added, “When the High Court issued notice on 15.02.2021 for final hearing on 22.02.2021, the SEC did not inform the High Court that vide a note of 05.02.2021 (disclosed for the first time by an affidavit filed in this Court on 08.03.2021), elections were proposed to be held on 20.03.2021.”
Further, the court observed, In a clear attempt to overreach the High Court, the State Election Commissioner, who is none other than the Law Secretary of the State of Goa, issues an election notification at 9:00 a.m. on 22.02.2021, even before the Government offices open at 9:30 a.m. in order to forestall the hearing of the writ petitions filed before the High Court, which commences hearing the writ petitions at 9.00 a.m.
“After the judgment was pronounced by the Division Bench of the High Court on 01.03.2021 and no stay granted, this court, “issued notice” on 04.03.2021 and stayed the impugned judgment, the effect of which was to revive the election programme that was notified on 22.02.2021. Despite this, the State Election Commission, on this very day i.e., 04.03.2021,amended the aforesaid notification by extending the time period for filing of nomination for 5 Municipal Councils from 04.03.2021 till 06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore, rescheduled the election,” it says.
The Bench said it was most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India.
“The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities,” it says.
The judgement says the importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K.
“Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest.
Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government,” COurt says.
Also it added, “If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfill the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future. The appeals are disposed of accordingly”.