Context: The Andhra Pradesh government has filed petitions in the Supreme Court and the High Court over the issue of the State Election Commission (SEC) postponing the local body elections citing the COVID-19 threat.
What is the issue?
- The government, in its petition before the apex court, accused the SEC of not taking it into confidence while taking the major decision of deferring the polls and called the move anti- constitutional.
- The government also found fault with the SEC for not consulting the High Court on whose instructions the elections were scheduled.
About the State Election Commission:
The Constitution of India vests in the State Election Commission, consisting of a State Election Commissioner, the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats and the Municipalities (Articles 243K, 243ZA).
The State Election Commissioner is appointed by the Governor.
As per article 243(C3) the Governor, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the SEC by clause (1).
What was the need for State Election Commissions?
Under the Constitution, establishment of local self-government institutions is the responsibility of the states (entry 5, List II, Seventh Schedule).
However, experience showed that not all state governments were serious about empowering Panchayati Raj institutions as elections were not being conducted regularly.
The Constitution was amended in 1992 to define the term (five years) for these institutions. Simultaneously, another provision was made for setting up a constitutional authority, the SEC, on the lines of the EC to conduct regular panchayat elections.
The ECI and SECs have a similar mandate; do they also have similar powers?
The provisions of Article 243K of the Constitution, which provides for setting up of SECs, are almost identical to those of Article 324 related to the EC. In other words, the SECs enjoy the same status as the EC.
In 2006, the Supreme Court emphasised the two constitutional authorities enjoy the same powers. In Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad, the Supreme Court directed that state governments should abide by orders of the SECs during the conduct of the panchayat and municipal elections, just like they follow the instructions of the EC during Assembly and Parliament polls.
How far can courts intervene?
Courts cannot interfere in the conduct of polls to local bodies and self-government institutions once the electoral process has been set in motion.
Article 243-O of the Constitution bars interference in poll matters set in motion by the SECs; Article 329 bars interference in such matters set in motion by the EC.
Only after the polls are over can the SECs’ decisions or conduct be questioned through an election petition.
These powers enjoyed by the SECs are the same as those by the EC.
In practice, are the SECs as independent as the EC?
Although state election commissioners are appointed by the state governors and can only be removed by impeachment, in the last two decades many have struggled to assert their independence.
One of the most widely remembered cases of confrontation happened in Maharashtra in 2008. Then state election commissioner Nand Lal was arrested and sent to jail for two days in March 2008 after the Assembly found him guilty of breach of privilege in an alleged conflict over his jurisdiction and powers. Lal had asserted that as the state election commissioner he had the power to hold elections to the offices of mayor, deputy mayor, sarpanch and deputy sarpanch. After a Congress MLA moved a privilege motion objecting to the notification, the privileges committee of the Assembly asked him to appear and explain. Lal did not, which led to the committee concluding that he was creating hurdles in “constitutional and legislative functions”, a breach of privilege. He was sent for two days of civil imprisonment.