Appointment of Government official as Election Commissioner “a mockery of the constitutional mandate”; ECs must be independent: Supreme Court

Supreme Court: Calling the appointment of the Law Secretary of the Government of Goa, a member of the IAS, as State Election Commissioner ‘disturbing’, the 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ has held that such appointment of a Government Officer directly under the control of the State Government is a subversion of the constitutional mandate contained in Article 243K of the Constitution of India

“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 Court said that 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.

The Court, hence, declared 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.”

In order 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 Court 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.”

[State of Goa v. Fauzia Imtiaz Shaikh,  2021 SCC OnLine SC 211, decided on 12.03.2021]

*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For State: Additional Solicitor General Tuhsar Mehta

For appellants: Senior Advocates Mukul Rohatgi, Vinay Navare

For first respondent: Senior Advocates Atmaram Nadkarni, Vivek Tankha

For intervenor: Councel Ninad Laud