State election commissioners have to be independent persons not occupying a post under the Centre or state governments, the Supreme Court has ruled. 

The SC bench termed the Goa government’s move to give its law secretary the additional charge of the state election commissioner (SEC) a “mockery” of constitutional mandate.

The top court directed if there were any such persons holding the post of SEC 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”.

A three-judge bench, headed by Justice R.F. Nariman, issued the direction to all states and Union Territories while taking recourse of its extraordinary powers under Article 142 of the Constitution that empowers it to pass any order in the interest of justice.

What is the case about?

The observations and directions were given in the 96-page judgement on a batch of pleas relating to the urban local body polls in Goa.

The judgment has upheld the Bombay High Court’s verdict of setting aside an order of the municipal administrator on February 4 on granting quota to women and OBC candidates in local urban body polls in five municipal councils in the state.

Petitions were filed in the Bombay High Court relating to the elections to 11 municipal councils where terms had expired on November 4 last year and the SEC had fixed polls in April, 2021.

The law secretary, who was given additional charge of the SEC on November 3, had postponed the polls due to the pandemic.

Pleas were filed in the high court against a change in the Goa Municipalities Act, by which 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.

The high court set aside the “impugned order issued by the director and ex-officio additional secretary, municipal administrator/urban development, Goa”.

The court had also directed the Goa municipal administrator to issue fresh notification for polls after ensuring “reservation for women of not less than one-third of the total number of seats reserved for direct elections to the municipal councils”.

The SC bench directed the Goa SEC to issue the notification for the urban body polls within 10 days and complete the poll process by April 30.

“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. 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,” the SC bench ruled.

Constitutional Provisions

The Constitution (73rd Amendment) Act, 1992 relating to panchayats containing Articles 243 to 243-O and the Constitution (74th Amendment) Act, 1992 relating to municipalities (articles 243P to 243ZG) imparted some basic features of certainty, continuity and strength to Panchayat Raj institutions all over the country.

The main features of the 73rd Amendment are:

1) a three-tier system of Panchayat Raj for all states having a population of over twenty lakhs.

2) Panchayat elections to be held regularly every five years.

3) Reservation of seats for the Scheduled Castes and Scheduled Tribes and for women (not less than one-third of seats).

4) Constitution of State Finance Commissions.

5) Constitution of District Planning Committees to prepare development plans for the district as a whole.

6) Establishment of State Election Commissions.

7) Establishment of Gram Sabhas.

Article 243K deals with elections to the panchayats.

It states that:

(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a state election commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the legislature of a state, the conditions of service and tenure of office of the state election commissioner shall be such as the Governor may by rule determine:

Provided that the state election commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of a High Court and the conditions of service of the state election commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor of a state shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the legislature of a state may, by law, make provision with respect to all matters relating to, or in connection with, elections to the panchayats. 

243ZA deals with elections to the municipalities. It states that:

1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the municipalities shall be vested in the State Election Commission referred to in Article 243K.

(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the municipalities.

Chief Electoral Officer of a state

The Election Commission of India is an autonomous constitutional authority, created under Article 324 of the Indian Constitution, responsible for administering Union and state election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. 

At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the state, who is appointed by the Commission under section 13A of the Representation of Peoples Act 1950 from amongst senior civil servants proposed by the concerned state government. He/she is, in most of the states, a full time officer and has a small team of supporting staff.

The election machinery in each state is headed by a Chief Electoral officer. 

The Chief Electoral Officer of the state shall supervise the preparation and revision of all electoral rolls and conduct of elections in the state for the Lok Sabha and state Legislative Assembly.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers, who are assisted by a large number of junior functionaries, perform election work. They all perform their functions relating to elections in addition to their other responsibilities. During election time, however, they are available to the Commission, more or less, on a full time basis.

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