State Election Commissioners Must Be Independent Persons Who Are Not Holding Posts Under Central Or State Govts : SC

In 9 Writ Petitions filed before the High Court of Bombay at Goa, the same was challenged and the High Court struck down the notice for reservation of wards on the count of having caused constitutional infractions and being issued de hors the mandate of the Constitution of India.

In SLP's before the Supreme Court filed by the State Government, the State contended that the High Court could not have interfered in the 'election process'. However, the Supreme Court, as per its judgment delivered by a bench comprising Justices RF Nariman, BR Gavai and Hrishkesh Roy, upheld the High Court verdict.

A bench comprising Justices RF Nariman, BR Gavai and Hrishikesh Roy passed this important direction in exercise of powers under Article 142 of the Constitution 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 bench passed this direction after observing that State of Goa "made a mockery of the constitutional mandate" by giving its Law Secretary the additional charge of SEC.

"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 bench observed.

The Goa Government was directed to remedy this situation by immediately appointing an independent person who is not holding any office or post in the Central or State Government.

The Court termed the subversion of the constitutional mandate for an independent State Election Commissioner by appointing government officers a "disturbing feature".

"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. 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 aJudge 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 thestate flouts the constitutional mandate of Article 243K".

The bench further observed :

"It is also made clear that henceforth, all State Election Commissioners appointed under Article243K 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. 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 fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office".

Case Details

Case Title : State of Goa and another v Fouzia Imtiaz Shaik

Bench : Justices RF Nariman, BR Gavai, Hrishikesh Roy