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Recently, the Supreme Court held that State Election Commissions(SECs) should have independent State Election Commissioners. Further, the judgement mentioned, a Bureaucrat holding government office should not be appointed as State Election Commissioner. This article will explain two things: a) the reasons behind the judgement; b) issues faced by the State Election Commissions in India.
About the recent judgement
In Goa, the government gave additional charge of managing the State Election Commission to the law secretary. Further, the Goa government also neglected the reservation for women, SCs, and STs in the upcoming Municipality election notification. A case got filed in the High Court of Bombay at Goa. The High Court struck down the notice and held that it is a violation of Article 243T of the Constitution.
But the State government filed a Special Litigation petition stating that the High Court has interfered in the ‘election process’. In this case, (State of Goa vs Fauzia Imtiyaz Sheikh) the Supreme Court in its judgement made a few important observations. Such as:
- By providing additional charges to the law secretary of an independent constitutional office (State Election Commission), the State government has violated the provisions of the Constitution. Further, the court mentioned that the position of law secretary is “directly under the control of the State Government”. So, appointing him as a State Election Commissioner will impact the independence of the office.
- Apart from that, the court also held that according to the Constitution, all states and territories shall appoint an Independent State Election Commissioner.
- Furthermore, State governments should not interfere with the functioning of the State Election Commission.
What are State Election Commissions?
The constitution envisages State Election Commissions (SEC) for every state to safeguard the free and fair election. It is constituted under the provisions of Article 243K read with article 243ZA of The Constitution of India.
Further, the constitution also mentions the State Election Commission should consist of a State Election Commissioner.
The constitutional provisions with respect to State Election Commissions:
- Article 243K(1): This provision mentions two important following things.
- The superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats (and the Municipalities under Article 243ZA) will be vested in the State Election Commission.
- The Governor will appoint the State Election Commissioner.
- Article 243K(2): This article mentions that the Governor will decide the tenure and appointment of the State Election Commissioner. But there are few restrictions as well. Such as:
- His conditions of service shall not be varied to his disadvantage after his appointment.
- Only by following the grounds and procedures to remove the judge of a High Court, the State Election Commissioner can get removed from his office.
Note: The President based on the recommendation of the Parliament can remove the judge of a high court. So, the governor cannot remove the State Election Commissioner. Even though, they he/she have appointed him.
Judicial intervention regarding State Election Commissions
The court intervened in the functions and powers of the State Election Commission multiple times. The important ones are,
- Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad (2006): In this case, the Supreme Court held that during the conduct of the panchayat and municipal elections, the state governments should abide by the orders of the SECs. Just like they follow the instructions of the Election Commission during Assembly and Parliament polls. In conclusion, the SECs will enjoy the same powers as the Election Commission of India(ECI).
- Aparmita Prasad Singh vs. State of U.P. (2007): The UP government has reduced the term of the State Election Commissioner from seven years to five years in 2007. The then Election Commissioner of UP filed a case regarding that.
In that, the Allahabad High Court held that cessation of tenure by the State government does not amount to the removal of the State Election Commissioner. But, the Court also mentioned that the State can alter the terms and conditions of the State Election Commissioner before appointing him/her.
- N. Ramesh Kumar vs State of Andhra Pradesh (2020): In this case, the court held that the State government cannot remove the State Election Commissioner by a promulgation of the ordinance.
Challenges with the State Election Commissions
- Lack of autonomy in SECs: Despite the provisions for independence of SECs, they are not functioning as an autonomous institution.
For example, In 2008 the then state election commissioner of Maharastra asserted that he should have the power to hold elections to the offices of mayor, deputy mayor, and sarpanch offices. But the State assembly got him arrested for the breach of privilege and sent him to jail for two days.
- Lack of Constitutional safeguard for SECs: The manner of removal of SECs has been flouted by the State governments by alternative methods such as restricting the terms and conditions etc. This is evident in the Aparmita Prasad Singh vs. State of U.P. case
- No uniformity of service conditions for SECs: Since the Constitution vest the power to determine the service conditions on State legislatures, the service conditions are not uniform across the country.
Impact of the issues in State Election Commission
- Functions of Municipalities and Panchayats: The court in the Kishan Singh Tomar case observed that due to various problems in the State Election Commission, the SECs are facing challenges in preparing the electoral rolls and conducting timely elections. This will impact the regular functioning of Local government institutions.
- Impact on Free and Fair Election: Free and fair elections form the bedrock of a democracy. Any restriction of the functions of State Election Commissions will directly affect the free and fair election. For example, In the recent Goa government case itself, the election notification violated the reservation for women, SC, and STs.
Suggestions to improve the performance of State Election Commissions
- The State governments have to follow the judicial directives. Such as,
- Appointing the independent person as the State Election Commissioner,
- Instituting the autonomy of SECs
- Respect the SECs functions during the elections of Panchayats and Municipalities
- The Second ARC(Administrative Reforms Commission) has recommended a few important recommendations to improve the functioning of SECs. State governments should implement them. The recommendations are,
- Formation of collegium: The state government should create a collegium consisting of the Chief Minister, the Speaker, and the Leader of Opposition in the Legislative Assembly. The collegium will recommend the State Election Commissioner to the Governor for the appointment.
- Creation of an institution to bring the Election Commission and the SECs under one roof. This will make better coordination, better utilization of resources, and experience sharing.
- As per the recommendation of the Law Commission, The Central government can provide a separate independent and permanent Secretariat for the SECs and Election Commission.
In conclusion, the independence of the State Election Commission is essential to ensure free and fair elections at the grass-root level. So, the State governments have to ensure that to protect the bedrock of democracy.