he Supreme Court’s order on municipal elections has left the State government, particularly the State Election Commissioner (SEC), red-faced as the country’s highest court has termed an officer’s appointment to an independent constitutional office a ‘mockery of constitutional mandate’.
The three-judge bench also pulled up the SEC for issuing an election notification at 9 am on February 22, 2021, even before government offices open at 9.30 am to stall writ petitions then being heard at the High Court of Bombay at Goa. The high court, since February 1 commences hearing from 9 am due to the COVID-19 restrictions.
“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 of the government of the State flouts the constitutional mandate of Article 243K,” the bench of Judge Rohinton Fali Nariman, Judge B R Gavai and Judge Hrishikesh Roy said.
The SC has directed the Goa government to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. The post is currently being held by IAS officer Chokha Ram Garg.
“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,” states the order.
As it came down heavily on the manner in which the authorities in Goa have handled the situation over municipal polls, the SC said the entire process is faulted as the SEC is also holding a position in the government.
“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,” it said.
The SEC had postponed the municipal elections twice due to the COVID-19 pandemic raging throughout the State. On the second occasion, by the notification dated January 14, 2021, the SEC postponed these elections till April 2021 or the election date which may be determined by the Commission. The SC, to this, noted that the expression “or the election date which may be determined by the Commission” would indicate a date beyond April 2021, given the situation in which Goa finds itself due to the COVID-19 pandemic.
It is important to note that the High Court in its direction directed the SEC to act in accordance with this notification so that elections are held by April 15, 2021 and the Advocate General told the court that orders of reservation in wards of Municipal Councils will be made at least three weeks before the election program is announced. “The State Government instead of acting upon these statements, inserted an amendment by adding a proviso to Section 10 of the Goa Municipalities Act in which a lesser period was mentioned that is, a period of at least one week. The Law Secretary’s letter dated February 5, 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, that is, on February 4, 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,” the SC observed adding,
“All the writ petitions in the present cases were filed between February 9 and 12, 2021 immediately challenging the DMA Director’s order. None of these writ petitions contained a prayer that would hold up any election program. 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 bench said.
The SC, in what has exposed the government and the SEC, said that when the High Court issued notice on February 15, 2021 for final hearing on February 22, 2021, the SEC did not inform the High Court that vide a note of February 5, 2021, elections were proposed to be held on March 20, 2021.
“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 am on February 22, 2021, even before the Government offices open at 9:30 am in order to forestall the hearing of the writ petitions filed before the High Court, which commences hearing the writ petitions at 9.00 am,” reads the 95-page order of the SC.
The apex court further observed that the most disturbing feature of these cases was the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. It also noted that the State Election Commissioner has to be a person who is independent of the State Government considering it is an important constitutional functionary to oversee the entire election process in the state qua panchayats and municipalities. With a clear violation in the case of Goa, the SC has directed that henceforth any State Election Commissioners should be an independent person, not linked with the government; clearly indicating that the government officers presently holding the post in any State should step down.
The SC’s order striking down the February 4, 2021 reservation order has come as a major blow to the government also as the former has directed notifying a fresh election schedule.
