STATE OF GOA & ANR. versus FOUZIYA IMTIAZ SHAIKH & ANR.

Citation: [2021] 2 S.C.R. 770 · Decided: 12-03-2021 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 2 S.C.R.
STATE OF GOA & ANR.
v.
FOUZIYA IMTIAZ SHAIKH & ANR.
(Civil Appeal No. 881 of 2021)
MARCH 12, 2021
[ROHINTON FALI NARIMAN, B. R. GAVAI AND
HRISHIKESH ROY, JJ. ]
Constitution of India:
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
[2021] 2 S.C.R. 770
770
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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/

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