Judgement Summary

STATE OF GOA ANR. V FOUZIYA IMTIAZ SHAIKH

Coram- Nariman J., B.R. Gavai J. and Hrishikesh Roy J.

Judgment

States should ensure independence of State Election Commission, the Court held. issued directions under Article 142 of the Constitution of India to direct that all states and territories in India shall henceforth ensure that it has an Independent State Election Commissioner as mandated under Article 243(4) of the Constitution

Background

  1. The Goa State Election Commission [“SEC”] decided to postpone the elections to 11 Municipal Councils whose terms were to expire on 04.11.2020. The elections were scheduled to be held on 18.10.2020, which were postponed to 18.01.2021 in view of the COVID-19 pandemic situation in the State of Goa. On 03.11.2020, the Governor of Goa appointed the Law Secretary of the Government of Goa, a member of the IAS, as State Election Commissioner which duties were to be in addition to his duties as Law Secretary. By an order dated 05.11.2020, Municipal Administrators were appointed by the Department of Urban Development (Municipal Administration) for all these municipal councils whose terms had expired. [When term is expired and election could not be conducted, then one administrator is appointed by the State Government. He is normally an IAS officer for big municipalities]. By a notification dated 14.01.2021, the Goa SEC further postponed the election for a period of three months i.e., till April 2021 or the election date which may be determined by the Commission.
  2. On 04.02.2021, the State of Goa published an amendment to Section 10(1) of the Goa Municipalities Act, 1968 [“Goa Municipalities Act”] in the official gazette. It said, the time frame for issuance of a notification for reservation of wards was stated as being “at least seven days” before the notification for schedule of dates and events of the elections. On the same day, the Director of Municipal Administration issued an order for reservation of wards for 11 municipal councils within the State of Goa. (So even though period specified was 7 days before the notification, they issued notification on the same day).
  3. The petitioners challenged the matter in the Bombay HC. The petition was taken up on the same day when the election was conducted. The division bench of HC allowed the petitions and held that: fresh notification needs to be made after giving 10-day notice. However, HC did not grant stay to the election.
  4. Then petitioners moved to Supreme Court.

Court’s reasoning-

  1. Part IXA of the Constitution titled “The Municipalities” was inserted by the Constitution (Seventy-Fourth) Amendment Act, 1992 with effect from 1st June 1993. Article 243P defines “Municipal Area” and “Municipality”.
  2. Municipalities are then divided into three categories under Article 243Q. The first is the Nagar Panchayat for a transitional area i.e., an area in transition from a rural to an urban area; the second is the Municipal Council for a “smaller urban area” and third, a Municipal Corporation for a “larger urban area”
  3. Article 243T is important and provides for reservation of seats in Municipalities
  4. Under Article 243U (1), every Municipality, unless earlier dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
  5. Article 243ZA provides for elections to Municipalities
  6. Article 243ZA (1) corresponds to Article 324 contained in Part XV dealing with elections to Parliament and the legislative bodies of the States. Likewise, 243ZA (2) corresponds to Article 328 contained in the same chapter.
  7. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency the Supreme Court held that, “election” has to be understood in the wider sense as follows:

The discussion in this passage makes it clear that the word “election” can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.” The court also held that “it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.”

  • Court also held that any irregularity pertaining to election while the election is in progress should be filed in a special tribunal by way of an election petition and that should not be a matter of any deliberation in any court.
  • Similarly, in Durga Shankar Mehta v. Thakur Raghuraj Singh
    • there is no prohibition of the exercise of its powers by the Supreme Court in proper cases under Article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other Judicial Tribunals comes within the purview of the article. It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive
    • the powers under Article 136 are exercisable only under exceptional circumstances. The article does not create any general right of appeal from decisions of all tribunals
    • Ponnuswami v. Returning Officer, Namakkal Constituency [1952 SCR 218] decided that the High Court had no jurisdiction, under Article 226 of the Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate and this is not true about power of Supreme Court under A136.
  • In Narayan Bhaskar Khare (Dr) v. Election Commission of India, a 7-judge bench held that election means the whole process of election and not any part like voting or counting. Election has to be given a wider meaning.
  • Similarly, in Mohinder Singh Gill v. Chief Election Commr. Court held
    • Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
    • Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
    • The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
    • Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fair playing-action in a most important area of the constitutional order viz. elections. (here commission means election commission)
  • In Boddula Krishnaiah and Another v. State Election Commissioner, A.P. & Ors., (1996) 3 SCC 416 court held that, once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal
  • In Election Commission of India v. Ashok Kumar, the court held that, Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.”
  • In Kurapati Maria Das v. Dr. Ambedkar Seva Samajan, (2009) 7 SCC 387, the validity of a caste certificate came up for determination in a writ petition that was filed which challenged municipal elections made to a reserved constituency. The court held that, the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution
  • In W.B. State Election Commission v. Communist Party of India, the court held that, challenges in regard to the validity of the elections to the uncontested seats in the panchayats, Panchayat Samitis and Zila Parishads must also be pursued in election petitions under Section 79(1) of the Panchayat Elections Act and not by way of any extra ordinary writ.
  • In Laxmibai v. Collector, the court held that, it is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court.
  • In Election Commission of India v. Shivaj the court held that, if there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405] and to see that the election process was completed in a fair manner.
  • the scheme contained in Part XV is bodily lifted into the provisions contained in Part IX-A, the powers exercised by the SEC under Article 243ZA (1) are the same as those vested in the Election Commission of India under Article 324 of the Constitution of India.
  • the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections.
  • The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election.
  • The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf.
  • the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats
  • In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman held that the delimitation process and the making of electoral rolls is independent of the process of any particular election
  • in State of U.P. v. Pradhan Sangh Kshettra Samiti, 1995 Supp (2) SCC 305, a division bench of Court delineated the scope of interference so far as delimitation of Panchayat areas is concerned and held that – It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same
  • The court after reading all the judgments held that-
    • Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State.
    • If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner
    • The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.
    • Under Article 243ZA (1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA (1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf.
    • It is entirely up to the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.
    • Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.
    • Article 243ZA (2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats
    • Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies
    • The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities
    • The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies.  This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition
  • As regards to the case in hand
    • 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 is important to note 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. Obviously, 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 the State of Goa finds itself due to the COVID-19 pandemic. It is important to note that the High Court in its direction contained in paragraph 81(e) directs the SEC to act in accordance with this notification so that elections are held by 15.04.2021.
    • assurances were made by the Advocate General that orders of reservation in wards of Municipal Councils will be made at least three weeks before the election programme 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 i.e., a period of at least one week
    • 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.
    • 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
    • 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
  • Hence, 10 day’s notice to be given before finalizing the notification.
  • 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 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, a mockery of the constitutional mandate. t 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. 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. 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.

Summary-

HC did not stay election, because high court did not know election was happening. HC ordered the SEC to issue fresh notification. Accordingly SEC kept the election process in abeyance. Supreme Court quashed the orders of both and asked to conduct election. But said, HC order will be observed in two changes- (i) date of completion or election should be 30th April instead of 15th April and the period of 10 days wills start from the judgment on this order.

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