NDLI: State of Goa & Anr. Vs. Fouziya Imtiaz Shaikh & Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Constitution of India Art. 243K – Elections to the Panchayats
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 Referred Case 14 Referred Case 15 Referred Case 16 Referred Case 17 Referred Case 18 Referred Case 19
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Art. 243K – Elections to the Panchayats – Law Secretary to Government of Goa appointed as State Election Commission(SEC) – Correctness of – Held: Appointment of Law Secretary to Government of Goa as SEC is subversion of the constitutional mandate – SEC 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 – Importance given to the independence of SEC is explicit from the provision for removal from his office made in the proviso to clause (2) of Art. 243K – 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 a mockery of the constitutional mandate – Additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Art. 243K – State Government is directed to remedy this position by appointing an independent person to be the SEC at the earliest. Arts. 243T, 243ZA, 243ZG – Elections to the Municipal Councils – Postponment of elections to 11 Municipal Councils by Goa State Election Commission (SEC) in view of COVID-19 pandemic situation – Law Secretary of Government of Goa appointed as State Election Commissioner, which duties were in addition to his duties as Law Secretary – By Notification, election postponed for three months – Thereafter, on 04.02.21, amendment made to s. 10(1) of the Act whereby time frame for issuance of Notifications for reservation of wards was stated as being at least seven days before the notification of schedule of dates and events of elections – On the same day, issuance of order for reservation of wards for 11 Municipal Councils, by Director of Municipal Administrator – Writ petitions challenging amendment to s. 10(1) and the order dated 04.02.21 – On 22.2.2021, Notification was issued out at 9.00 am and presented to the Goa Bench, by which elections to the 11 Municipal Councils commenced – Thereafter, on 04.03.21, Notification issued by the SEC altering the original schedule of elections – High Court quashed the order dated 04.02.21 and issued direction to the Director to issue Notification within period of 10 days; and to SEC to notify election programme – Interference with – Held: Not called for – High Court rightly ignored the constitutional bar in arriving at the conclusion that the 04.02.2021 order is illegal and ultra vires the provisions of Art. 243T r/w ss. 9 and 10 of the Act – SEC is not an independent body as is mandated by Art.243K but is a Law Secretary to the Government of Goa – Thus, the whole process of these elections was faulted at the start – SEC had itself postponed the municipal elections twice due to the COVID-19 pandemic – On facts, due application of mind could not have been bestowed before issuing the order dated 4.2.21 – When the High Court issued notice on 15.02.2021 for final hearing on 22.02.2021, the SEC did not inform the High Court that vide a note of 05.02.2021, elections were proposed to be held on 20.03.2021 – Furthermore, in a clear attempt to overreach the High Court, SEC issued an election notification at 9:00 a.m. on 22.02.2021, even before the Government offices open at 9:30 a.m. in order to forestall the hearing of the writ petitions filed before the High Court – On 04.03.2021, SEC had rescheduled the election – Goa Municipalities Act, 1968 – ss. 9, 10 and 22 – Elections. Art. 243ZA(1) – Election to Municipalities – Powers exercised by the State Election Commission (SEC) under Art. 243ZA(1) – Held: The entire supervision and conduct of elections to municipalities is vested in a constitutional authority-SEC – SEC gives orders and directions to the State Government as well as authorities that are set up under State statutes for supervision and conduct of elections – SEC also fills in gap where there is no law or rule governing a particular situation during the conduct of an election – SEC being an independent constitutional functionary is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court u/Arts. 226 and 227 to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf.Arts. 243ZG(a)/329(a) – Bar to interference by Court in electoral matters – Delimitation and allocation of seats – Held: Bar contained in Art. 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Art. 329(a) – Constitutional bar of Art. 243ZG(a) applies only to courts and not the State Election Commission. Arts. 243ZG(a), 243ZA – Municipal elections – Consecptus of – Held: Under Art. 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal – From the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated debarring the writ court u/Arts. 226 and 227 from interfering once the election process has begun until it is over – Constitutional bar operates only during this period – Thus, discretion is exercised by the writ court as to whether an interference is called for when the electoral process is “imminent”- notification for elections is yet to be announced – However, if the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders – Furthermore, Art. 243ZG does not operate as a bar after the election tribunal decides an election dispute before it – Thus, the jurisdiction of the High Courts u/Art. 226 and 227 and that of the Supreme Court u/Art. 136 is not affected – Under Art. 243ZA(1), if there is a constitutional or statutory infraction by any authority either before or during the election process, SEC can set right such infraction – SEC can direct the State Government or other authority to follow the Constitution or legislative enactment – It can also approach a writ court to issue necessary directions in this behalf – Judicial review of a State Election Commission’s order is also available on grounds of review of administrative orders.
Judge	Hon'ble Mr. Justice R.F. Nariman
Neutral Citation	2021 INSC 179
Petitioner	State Of Goa & Anr.
Respondent	Fouziya Imtiaz Shaikh & Anr.
SCR	[2021] 2 S.C.R. 770
Judgement Date	2021-03-12
Case Number	881

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State of Goa & Anr. Vs. Fouziya Imtiaz Shaikh & Anr.

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