The Supreme Court ruled that serving bureaucrats must not be appointed as election commissioners to ensure that the independence of the office of the election commissioner is not compromised.
A Bench of the Supreme Court was hearing an appeal by the Goa government against an order of the Bombay High Court.
The Bombay High Court had earlier castigated the State Election Commission (SEC) for not acting independently to ensure that the mandate of the Constitution was followed before issuing an election schedule.
Also, the Court had issued a stay on certain municipal election notifications issued by the Goa State Election Commission.
The territorial jurisdiction of Bombay High Court extends to Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu.
During the proceedings it came to notice that the law secretary of the Goa state was given ‘additional charge’ of the State Election Commission.
Supreme Court’s Ruling:
Independent persons and not government employees should be appointed Election Commissioners.
Giving government employees additional charge as Election Commissioners is a mockery of the Constitution.
Directed States to comply with the constitutional scheme of independent and fair functioning of election commissions.
If they hold any such office (under the state government), then they have to resign before taking charge of the office of the election commissioner.
Ordered all state governments to appoint whole-time election commissioners who will act independently and fairly.
About State Election Commissions (SECs):
The State Election Commission has been entrusted with the function of conducting free, fair and impartial elections to the local bodies in the state.
Article 243K(1): It states that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats (Municipalities under Article 243ZA) shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
Article 243K(2): It states that the tenure and appointment will be directed as per the law made by the state legislature. However, State Election Commissioner shall not be removed from his/her office except in like manner and on the like grounds as a Judge of a High Court.
Second Administrative Reforms Commission Recommendation (2nd ARC):
Constitution of the State Election Commission: According to 2nd ARC, the State Election Commissioner (SEC) should be appointed by the Governor on the recommendation of a collegium, comprising the Chief Minister, the Speaker of the State Legislative Assembly and the Leader of Opposition in the Legislative Assembly.
An institutional mechanism should be created to bring the Election Commission of India and the SECs on a common platform for coordination, learning from each other’s experiences and sharing of resources.
Law Commission 255th Report on Electoral Reforms:
It recommended, to add a new sub-clause to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the Election Commission of India (ECI) along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution.
Similar provisions can also be made for the State Election Commissions to ensure autonomy, and free and fair local body election.