Bureaucrats cannot be State Election Commissioners: SC

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The Supreme Court has termed the appointment of bureaucrats as State Election Commissioners (SEC) against independence of SEC and hence unconstitutional.

• Hence only independent persons, not bureaucrats should be appointed as SEC.
• Giving government employees the additional charge of SEC is a “mockery of the Constitution” as per Justice F Nariman.
• This judgment was in response to appeal against an Bombay HC order related to municipal election notification issued by the Goa State Election Commission.

State Election Commissioner

• Created by Article 243K and Art 243ZA added by the 73rd and 74th Constitutional Amendment Acts, SEC was given responsibility to conduct free elections of panchayats and municipalities.
• It was envisaged to act like Election Commision in its own sphere (Local Body Elections).
• The SEC is appointed by the Governor and his status and salary is similar to a Judge of the High Court.
• He can not be removed from his office except in the manner and on the like grounds as a Judge of a High Court.
• Functions:
  • Chairman of Delimitation Commission
  • Prepare Elector rolls of Panchayats, Municipalities and Municipal Corporations.
  • Conduct Elections to
    • Offices of Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President.
    • No Confidence Motion against Local Bodies Head.
    • various Standing Committees and their Chairpersons.
  • Decide on Disqualification of elected Members/Councilors.
  • Decide on application of Anti Defection Rules.

Rationale Behind Such Decision

• Constitutional Mandate: Art 243K and Art 243ZA give state government power to legislate on method of conducting elections for local bodies but that doesn’t mean that the post of SEC can be influenced by the State.
• Elections are the foundation of Democracy: As per Union Of India v. Association For Democratic Reforms And Another, 2002 judgment, Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy.
  • Hence the SEC needs to be independent on the lines of Chief Election Commissioner (CEC).
• Conflict of Interest: The ruling party is political master and superior of bureaucrats and a bureaucrat as the SEC has to monitor the people associated with his senior. It creates the Conflict of Interest.

Challenges in Implementing such Provisions

• Constitutional: Constitution has not mentioned minimum qualification or appointment procedure except for SEC.
  • It has been left to the discretion of the State Legislature which should not be the case.
• Lack of Funds: State governments are facing a crunch of funds and hence even the regular elections are not held at local bodies level.
• Transfers of Bureaucrats just before Elections: The bureaucrats still play a pivotal role in election procedure and last moment transfers have raised similar doubts of State’s interference.

Source: EconomicTime