Government servants should not be appointed Election Commissioners; Independence of Election Commission cannot be compromised: Supreme Court

Central and State government servants should not be appointed as State Election Commissioners, the Supreme Court ruled on Friday stating that entrusting additional charge of State Election Commissioner to a government official is a mockery of the Constitution. .A Bench of Justices Rohinton Fali Nariman, BR Gavai and Hrishikesh Roy underscored that independence of Election Commission cannot be compromised and that State Election Commissioners appointed under Article 243K of the Constitution, have to be independent persons. The Court, therefore, invoked Article 142 to order that any Central or State government employee holding the post of State Election Commissioner in any State should be immediately asked to step down. ."It is 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," the Court ordered. .It emphasised 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 with respect to panchayats and municipalities. 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, it added. .The judgment came on an appeal against an order of the Bombay High Court which had set aside an order dated February 4, 2021 issued by Director of Municipal Administration regarding reservation of wards for women was set aside with respect to the municipalities of Margao, Mapusa, Mormugao, Sanguem and Quepem..In November, 2020, Governor of Goa had appointed the Law Secretary of the Government of Goa as the State Election Commissioner. .The High Court had allowed the State Election Commission to continue the election process in other municipalities while disallowing the same in five municipalities for not reserving the wards for women as required under the law..The Supreme Court while upholding the Bombay High Court judgment, noted that the most disturbing feature of the case was the subversion of the constitutional mandate contained in Article 243K of the Constitution of India since the State Election Commissioner was 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," the Court said. .The State Government should, therefore, to remedy the same by appointing an independent person to be the State Election Commissioner at the earliest, the Court ordered. Such person cannot be a person who holds any office or post in the Central or any State Government, the Bench made it clear. ."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 additional observed. .In view of the same, the top court invoked Article 142 to extend its direction to all States. .[Read Judgment]