Holding

The appointment of the Law Secretary as State Election Commissioner subverts the constitutional mandate of an independent SEC under Article 243K, rendering the election orders invalid and necessitating the appointment of an independent SEC and the setting aside of the impugned orders.

Summary

The State of Goa appointed its Law Secretary as State Election Commissioner (SEC) to oversee municipal elections that had been postponed due to COVID‑19. The SEC, acting under this dual role, issued a reservation order on 4 February 2021 and a subsequent election schedule, which were challenged in writ petitions alleging violations of constitutional provisions on reservation and the independence of the SEC. The High Court quashed the orders, but the Supreme Court examined whether the constitutional bar under Articles 243ZG/329(b) barred judicial interference and whether the Law Secretary could validly serve as an independent SEC under Article 243K. The Court held that the appointment subverted the constitutional mandate of an independent SEC, rendering the election process faulty from the start, and that the High Court was correct to set aside the orders. Consequently, the Court directed the State to appoint an independent SEC and to re‑issue a proper election programme, while also striking down the impugned reservation order and election notification.

Issues considered

The appointment of the Law Secretary of Goa as State Election Commissioner violates the independence requirement under Article 243K.
Whether the High Court's quashing of the reservation order and election schedule is permissible despite the constitutional bar in Articles 243ZG(a) and 329(b).
Whether the amendment to Section 10(1) of the Goa Municipalities Act and the reservation order are ultra vires the Constitution and the Act.
The scope of judicial review over SEC orders before, during, and after the election process.
The applicability of the hands‑off doctrine and the court's jurisdiction under Article 136 in election matters.

Legislation cited

Delimitation Commission Act, 1962s. 10, s. 8, s. 9
Goa Municipalities Act, 1968s. 10, s. 22, s. 9
Goa Panchayat Raj Act, 1994s. 237
Representation of the People Act, 1950

Subjects

State Election CommissionArticle 243Kmunicipal electionsreservation of seatsindependence of constitutional functionaryjudicial reviewelectoral lawhand‑off doctrineCOVID‑19 pandemic

Judgment

770 [2021]REPORTS
SUPREME COURT 2 S.C.R. 770 [2021] 2 S.C.R.

A STATE OF GOA & ANR.
v.
FOUZIYA IMTIAZ SHAIKH & ANR.
(Civil Appeal No. 881 of 2021)
B MARCH 12, 2021
[ROHINTON FALI NARIMAN, B. R. GAVAI AND
HRISHIKESH ROY, JJ. ]
Constitution of India:
C 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
D
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
E 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.
F
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
G 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
H the same day, issuance of order for reservation of wards for 11
770
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 771

Municipal Councils, by Director of Municipal Administrator – Writ A
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 B
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 C
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 D
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 E
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: F
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
G
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. H
772 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 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.
B
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
C 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
D 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
E 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
F 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.
Disposing of the appeals and allowing the writ petition, the
G Court
HELD: 1.1 The constitutional bar contained in
Article 243ZG(a) does not apply to the facts of this case. [Para
64][845-H]
Anugrah Narain Singh v. State of U.P. (1996) 6 SCC
H 303 : [1996] 5 Suppl. SCR 719 – relied on.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 773

1.2 This Court is constrained not to interfere with the A
impugned judgment under Article 136 of the Constitution of India.
This is because of the following special features of the facts of
these cases:
(i) First and foremost, the State Election Commissioner is
none other than the Law Secretary to the Government of Goa. B
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.
(ii) The SEC had itself postponed the municipal elections
twice due to the COVID-19 pandemic raging throughout the State. C
On the second occasion, by the notification dated 14.01.2021,
the SEC had itself postponed these elections till April 2021 or
the election date which may be determined by the State Election
Commission. Obviously, the expression “or the election date
which may be determined by the Commission” would indicate a
date beyond April, 2021, given the situation in which the State of D
Goa finds itself due to the COVID-19 pandemic. It is important
to note that the High Court in its direction contained in paragraph
81(e) directs the SEC to act in accordance with this notification
so that elections are held by 15.04.2021.
(iii) In Dnyaneshwar Narso Naik’s case and Sujay S. Lotlikar’s E
case, solemn assurances were made by the Advocate General
that orders of reservation in wards of Municipal Councils will be
made at least three weeks before the election programme is
announced. The State Government instead of acting upon these
statements, inserted an amendment by adding a proviso to Section F
10 of the Goa Municipalities Act in which a lesser period was
mentioned i.e., a period of at least one week.
(iv) The Law Secretary’s letter dated 05.02.2021, calling
upon the Director, Urban Development, to issue a reservation
order under Section 10 of the Goa Municipalities Act was to do G
so “at an early date”. The Director, by an order passed one day
before this communication i.e., on 04.02.2021, with lightning
speed provided for reservation in all 11 Municipal Councils of
women/SCs/STs and OBCs prompting the High Court to observe

H
774 SUPREME COURT REPORTS [2021] 2 S.C.R.

A that due application of mind could not have been bestowed before
issuing such an order.
(v) All the writ petitions in the instant cases were filed
between 9th and 12th February, 2021 immediately challenging
the Director’s order dated 04.02.2021. None of these writ
B petitions contained a prayer that would hold up any election
programme. The only prayer was to strike down the said order
so that the Director in issuing a fresh order would have to truly
and faithfully carry out the constitutional mandate of Article 243T
of the Constitution of India and the statutory mandate contained
in Section 9 of the Goa Municipalities Act.
C
(vi) 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 (disclosed for the first time
by an affidavit filed in this Court on 08.03.2021), elections were
proposed to be held on 20.03.2021.
D
(vii) In a clear attempt to overreach the High Court, the
State Election Commissioner, who is none other than the Law
Secretary of the State of Goa, issued an election notification at
9:00 a.m. on 22.02.2021, even before the Government offices
opened at 9:30 a.m. in order to forestall the hearing of the writ
E petitions filed before the High Court, which commences hearing
the writ petitions at 9.00 a.m.
(viii) After the judgment was pronounced by the Division
Bench of the High Court on 01.03.2021 and no stay granted, this
court, “issued notice” on 04.03.2021 and stayed the impugned
F judgment, the effect of which was to revive the election programme
that was notified on 22.02.2021. Despite this, the State Election
Commission, on this very day i.e., 04.03.2021, amended the
aforesaid notification by extending the time period for filing
of nomination for 5 Municipal Councils from 04.03.2021
G till 06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore,
rescheduled the election. [Para 66][846-F-H; 847-A-H;
848-A-E]
2.1 The scheme contained in Part XV is bodily lifted into
the provisions contained in Part IX-A, the powers exercised by
the State Election Commission-SEC under Article 243ZA(1) are
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 775

the same as those vested in the Election Commission of India A
under Article 324 of the Constitution of India. The entire
supervision and conduct of elections to municipalities is vested
in a constitutional authority that is the SEC which is to supervise
and conduct elections by giving orders and directions to the State
Government as well as authorities that are set up under State
B
statutes for the purpose of supervision and conduct of elections.
The power thus,conferred by the Constitution is a power given
to the SEC not only to carry out the constitutional mandate but
also to fill in gaps where there is no law or rule governing a
particular situation during the conduct of an election. The SEC,
being an independent constitutional functionary, is not only to be C
obeyed by the State Government and the other authorities under
local State statutes, but can also approach the writ court under
Articles 226 and 227 of the Constitution of India to either enforce
directions or orders issued by it or to ask for appropriate orders
from High Courts in that behalf. [Para 52][832-C-F]
D
Mohinder Singh Gill v. Chief Election Commr. (1978) 1
SCC 405 : [1978] 2 SCR 272-relied on.
2.2 So far as delimitation and allocation of seats is concerned,
the bar contained in Article 243ZG(a) operates together with the
non-obstante clause contained therein to bar all courts from E
interfering with State statutes dealing with delimitation and
allocation of seats, just as is the bar contained in Article 329(a) of
the Constitution. [Para 53][832-G-H]
Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985)
4 SCC 689 : [1985] 1 Suppl. SCR 493; Indrajit Barua F
v. Election Commission of India (1985) 4 SCC
722: [1985] 3 Suppl. SCR 225; Meghraj Kothari v.
Delimitation Commission, [1967] 1 SCR 400; Assn. of
Residents of Mhow (ROM) v. Delimitation Commission
of India (2009) 5 SCC 404 : [2009] 5 SCR 384;
Rampakavi Rayappa Belagali v. B.D. Jatti (1970) 3 SCC G
147: [1971] 2 SCR 611; State of U.P. v. Pradhan Sangh
Kshettra Samiti 1995 Supp (2) SCC 305: [1995]
2 SCR 1015; Anugrah Narain Singh v. State of U.P.
(1996) 6 SCC 303: [1996] 5 Suppl. SCR 719;
H
776 SUPREME COURT REPORTS [2021] 2 S.C.R.

A Dravida Munnetra Kazhagam v. State of T.N.(2020) 6
SCC 548 – referred to
2.3 A conspectus of the judgments in the context of municipal
elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality
B can be called in question except by an election petition presented
to a Tribunal as is provided by or under any law made by the
Legislature of a State. This would mean that from the date of
notification of the election till the date of the declaration of result
a judicial hands-off is mandated by the non-obstante clause
C contained in Article 243ZG debarring the writ court under Articles
226 and 227 from interfering once the election process has begun
until it is over. The constitutional bar operates only during this
period. It is therefore a matter of discretion exercisable by a writ
court as to whether an interference is called for when the electoral
process is “imminent” i.e, the notification for elections is yet to
D be announced.
II. If, however, 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 provided that the
election process, once begun, cannot be postponed or protracted
E in any manner.
III. The non-obstante clause contained in Article 243ZG
does not operate as a bar after the election tribunal decides an
election dispute before it. Thus, the jurisdiction of the High Courts
under Articles 226 and 227 and that of the Supreme Court under
F Article 136 of the Constitution of India is not affected as the non-
obstante clause in Article 243ZG operates only during the process
of election.
IV. Under Article 243ZA(1), the SEC is in overall charge of
the superintendence, direction and control of the preparation of
G electoral rolls, and the conduct of all municipal elections. If there
is a constitutional or statutory infraction by any authority including
the State Government either before or during the election
process, the SEC by virtue of its power under Article 243ZA(1)

H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 777

can set right such infraction. For this purpose, it can direct the A
State Government or other authority to follow the Constitution
or legislative enactment or direct such authority to correct an
order which infracts the constitutional or statutory mandate. For
this purpose, it can also approach a writ court to issue necessary
directions in this behalf. It is entirely upto the SEC to set the
B
election process in motion or, in cases where a constitutional or
statutory provision is not followed or infracted, to postpone the
election process until such illegal action is remedied. This the
SEC will do taking into account the constitutional mandate of
holding elections before the term of a municipality or municipal
council is over. In extraordinary cases, the SEC may conduct C
elections after such term is over, only for good reason.
V. Judicial review of a State Election Commission’s order
is available on grounds of review of administrative orders. Here
again, the writ court must adopt a hands-off policy while the
election process is on and interfere either before the process D
commences or after such process is completed unless interfering
with such order subserves and facilitates the progress of the
election.
VI. Article 243ZA(2) makes it clear that the law made by
the legislature of a State, making provision with respect to matters E
relating to or in connection with elections to municipalities, is
subject to the provisions of the Constitution, and in particular
Article 243T, which deals with reservation of seats.
VII. The bar contained in Article 243ZG(a) mandates that
there be a judicial hands-off of the writ court or any court in F
questioning the validity of any law relating to delimitation of
constituency or allotment of seats to such constituency made or
purporting to be made under Article 243ZA. This is by virtue of
the non-obstante clause contained in Article 243ZG. The statutory
provisions dealing with delimitation and allotment of seats cannot
therefore be questioned in any court. However, orders made G
under such statutory provisions can be questioned in courts
provided the concerned statute does not give such orders the
status of a statutory provision.

H
778 SUPREME COURT REPORTS [2021] 2 S.C.R.

A VIII. Any challenge to orders relating to delimitation or
allotment of seats including preparation of electoral rolls, not being
part of the election process, can also be challenged in the manner
provided by the statutory provisions dealing with delimitation of
constituencies and allotment of seats to such constituencies.
B IX. The constitutional bar of Article 243ZG(a) applies only
to courts and not the State Election Commission, which is to
supervise, direct and control preparation of electoral rolls and
conduct elections to municipalities.
X. The result of this position is that it is the duty of the
C SEC to countermand illegal orders made by any authority including
the State Government which delimit constituencies or allot seats
to such constituencies. This may be done by the SEC either before
or during the electoral process, bearing in mind its constitutional
duty as delineated in the said proposition. [Para 63][843-E-H;
844-A-H; 845-A-G]
D
Election Commission of India v. Ashok Kumar (2000)
8 SCC 216 : [2000] 3 Suppl. SCR 34 – referred to.
2.4 No fault can be found with the Division Bench of the
High Court in ignoring any constitutional bar in arriving at the
E conclusion that the 04.02.2021 order is illegal and ultra vires the
provisions of Article 243T of the Constitution of India read with
Sections 9 and 10 of the Goa Municipalities Act. There was no
submission that the reservation of seats for women and OBCs
was in accord with the provisions of the Constitution and the Goa
Municipalities Act. Indeed, even otherwise, there was no fault
F with the Division Bench judgment in its conclusion that a fraction
has to be worked upwards whatever that fraction be, given the
mandatory language of Article 243T of the Constitution which
provides for reservation for women which shall not be less than
one-third. Also, the findings of the High Court on OBC
G reservation not complying with the mandate of Section 9(2)(bb)
in that in several councils it was below 27% cannot be faulted.
The same goes for observations made on the 1 ST seat in Sanguem
and non-application of the principle of rotation. The Solicitor
General was right in stating that the assurances given by the
Advocate General that the State Government would not raise
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 779

the bar of Article 243ZG(b), but would instead argue that since A
the election programme was “imminent” and that thus, the High
Court ought not intervene, cannot alter the position in law. There
can be no doubt that no concession by counsel can operate against
a constitutional bar. [Para 64, 65][846-B-F]
2.5 The order of the High Court will be observed with two B
changes. In paragraph 81(c), it is clarified that the period of 10
days in which the Director, Urban Development is to issue a fresh
order will be 10 days from the date of this judgment. Also, instead
of “15th April” occurring in paragraph 81(e), the words “30th
April” be substituted. All the other directions will remain
undisturbed. [Para 67][849-A-B] C

2.6 The most disturbing feature of these cases is the
subversion of the constitutional mandate contained in Article
243K of the Constitution of India. The State Election
Commissioner has to be a person who is independent of the State
Government as he is an important constitutional functionary who D
is to oversee the entire election process in the state qua
panchayats and municipalities. 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 E
for his removal from the office is concerned, he has been equated
with a Judge of a High Court. 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. Therefore, it is declared
that the additional charge given to a Law Secretary to the F
government of the state flouts the constitutional mandate of
Article 243K. The State Government is directed to remedy this
position by appointing an independent person to be the State
Election Commissioner at the earliest. Such person cannot be a
person who holds any office or post in the Central or any State G
Government. It is also 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

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780 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 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 persons to this high constitutional office. The
B
directions are issued under Article 142 of the Constitution of
India so as to ensure that the constitutional mandate of an
independent State Election Commission which is to conduct
elections under Part IX and IXA of the Constitution be strictly
followed in the future. [Para 68][849-B-H]
C Writ Petition (Civil) No. 309/2021
3. The instant Writ Petition (Civil) No. 309/2021 has been
filed under Article 32 of the Constitution of India by a resident of
Margao, Goa, challenging the reservation order dated 04.02.2021
issued by the Director of Municipal Administration, Goa, and the
D notification dated 04.03.2021 which was issued by the Goa SEC
altering the original schedule of elections. In view of the fact that
the reservation order dated 04.02.2021 has been set aside and
that a fresh election schedule will have to be notified, the writ
petition is allowed and the notification dated 04.03.2021 is also
E struck down. [Para 69][850-A-C]
N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency [1952] SCR 218; Durga Shankar Mehta
v. Thakur Raghuraj Singh [1955] 1 SCR 267; Hari
Vishnu Kamath v. Syed Ahmad Ishaque [1955] 1 SCR
F 1104; Narayan Bhaskar Khare (Dr) v. Election
Commission of India [1957] SCR 1081; Kishansing
Tomar v. Municipal Corpn., Ahmedabad (2006) 8 SCC
352 : [2006] 7 Suppl. SCR 454; W.B. State Election
Commission v. Communist Party of India (Marxist)
(2018) 18 SCC 141 : [2018] SCR 100; Dravida
G Munnetra Kazhagam v. State of T.N.(2020) 6 SCC 548;
Laxmibai v. Collector (2020) 12 SCC 186; Election
Commission of India v. Shivaji (1988) 1 SCC 277 :
[1988] 1 SCR 878; Bendict Denis Kinny v. Tulip Brian

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STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 781

Miranda & Ors. (2020) SCC Online 802; Boddula A
Krishnaiah and Another v. State Election Commissioner,
A.P. & Ors. (1996) 3 SCC 416 : [1996] 3 SCR 687;
Kurapati Maria Das v. Dr. Ambedkar Seva Samajan,
(2009) 7 SCC 387 : [2009] 6 SCR 498; Digvijay Mote
v. Union of India, (1993) 4 SCC 175: [1993]
B
1 Suppl. SCR 553; Kalabharati Advertising v. Hemant
Vimalnath Narichania & Ors (2010) 9 SCC 437: [2010]
10 SCR 971 – referred to.
Case Law Reference
[1952] SCR 218 referred to Para 9 C
[1955] 1 SCR 267 referred to Para 9
[1955] 1 SCR 1104 referred to Para 9
[1957] SCR 1081 referred to Para 9
[1996] 5 Suppl. SCR 719 referred to Para 9 D
[2006] 7 Suppl. SCR 454 referred to Para 9
[2018] SCR 100 referred to Para 9
(2020) 12 SCC 186 referred to Para 9
[1988] 1 SCR 878 referred to Para 10
E
[1978] 2 SCR 272 relied on Para 52
[1985] 1 Suppl. SCR 493 referred to Para 9, 53
[1985] 3 Suppl. SCR 225 referred to Para 9, 54
[1967] 1 SCR 400 referred to Para 9, 55
F
(2020) 6 SCC 548 referred to Para 9, 60
[1996] 3 SCR 687 referred to Para 44
[2009] 6 SCR 498 referred to Para 46
[1993] 1 Suppl. SCR 553 referred to Para 50
[2009] 5 SCR 384 referred to Para 56 G
[1971] 2 SCR 611 referred to Para 57
[1995] 2 SCR 1015 referred to Para 58

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782 SUPREME COURT REPORTS [2021] 2 S.C.R.

A [2000] 3 Suppl. SCR 34 referred to. Para 62
[1996] 5 Suppl. SCR 719 relied on Para 64
[2010] 10 SCR 971 referred to Para 66 (vii)
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
B No. 881 of 2021
From the Judgment and Order dated 01.03.2021 of the High Court
of Bombay at Goa in Writ Petition No. 86 of 2021.
With
Civil Appeal Nos. 882, 883, 884, 885, 886, 887, 888, 889, 890, 891,
C
892 of 2021 and W.P.(C) NO. 309/2021
Tushar Mehta, Solicitor General, Devidas Pangam, Advocate
General, Mukul Rohatgi, Vinay Navare, Atmaram NS Nadkarni, P. S.
Narasimha, Vivek Tankha, Sr. Advs., Arun R. Pedneker, Ms. Mukti
Chowdhary, Shubham Priolkar, Ms. Neela Gokhale, Kushal Choudhary,
D
Ms. Harshal Gupta, Ms. Anannya Ghosh, Dattaprasad Lawande,
Salvador Santosh Rebello, Pradosh Dangui, Gauravvardhan Nadkarni,
Jay Mathew, Ms. Arzu Paul, Adiraj Bali, Ms. Deepti Arya, Raghav
Sharma, Ishant Arora, Ms. Mitali Gupta, Ashish Krishnanath
Kuncoliencar, Ninad Laud, Ivo D’Costa, Abhay Anil Anturkar, M V
E Mukunda, Ms. Aditi Tripathi, Abhikalp Pratap Singh, Abhijeet Kamat,
Abhijit Gosavi, Ivo MS D’Costa, Sahil Tagotra, Vivek Jain, Ms Suchitra
Kumbhat, Nirvikar Singh, Nitin Sharma, Carlos Alvares Ferreira, D.
Kunanan, Prashant Sivarajan, Ujjawal Anand Sharma, Mannat Sandhu,
Ms. Zinnea Mehta, Tushar Saigal, Ankur Das, Racheeta Chawla, Ankit
Shah, Advs. for the appearing parties.
F
The Judgment of the Court was delivered by
R. F. NARIMAN, J
1. IA No. 35153/2021 in SLP(C) No. 3937/2021 being an
application for intervention is allowed. Leave granted in all the Special
G Leave Petitions.
2. The present batch of civil appeals raise important questions on
the provisions contained in Part IXA of the Constitution of India. The
Goa State Election Commission [“SEC”] decided to postpone the
elections to 11 Municipal Councils whose terms were to expire on
H 04.11.2020. The elections were scheduled to be held on 18.10.2020,
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 783
[R. F. NARIMAN, J]

which were postponed to 18.01.2021 in view of the COVID-19 pandemic A
situation in the State of Goa. On 03.11.2020, the Governor of Goa
appointed the Law Secretary of the Government of Goa, a member of
the IAS, as State Election Commissioner which duties were to be in
addition to his duties as Law Secretary. By an order dated 05.11.2020,
Municipal Administrators were appointed by the Department of Urban
B
Development (Municipal Administration) for all these municipal councils
whose terms had expired. By a notification dated 14.01.2021, the Goa
SEC further postponed the election for a period of three months i.e., till
April, 2021 or the election date which may be determined by the
Commission.
3. On 04.02.2021, the State of Goa published an amendment to C
Section 10(1) of the Goa Municipalities Act, 1968 [“Goa Municipalities
Act”] in the official gazette, by which the time frame for issuance of a
notification for reservation of wards was stated as being “at least seven
days” before the notification for schedule of dates and events of the
elections. On the same day, the Director of Municipal Administration D
issued an order for reservation of wards for 11 municipal councils within
the State of Goa. We are informed by the SEC that on 05.02.2021,
electoral rolls were prepared and returning officers appointed for an
ensuing election.
4. Meanwhile, being aggrieved by the order dated 04.02.2021, 9 E
writ petitions were filed before the High Court of Bombay at Goa
between 09.02.2021 and 12.02.2021 challenging the aforesaid order on
various grounds. By a separate writ petition, being W.P. No.92/2021, the
amendment to Section 10(1) also came to be challenged. This matter is
pending hearing and final disposal before the High Court, and has been
segregated from the other writ petitions which were disposed of by the F
High Court.
5. On 15.02.2021, the writ petitions came up for hearing and the
High Court was pleased to list the matters for final disposal on 22.02.2021.
It is stated by Shri Nadkarni, learned Senior Advocate appearing on
behalf of first Respondent in civil appeal arising out of SLP(C) No. G
3937/2021, that this was done with the understanding between the parties
that the election schedule would not be notified till the disposal of the
writ petitions.
6. On 22.02.2021, as the Division Bench at Goa commenced the
hearing of the petitions, a notification of the same date, time being 9.00 H
784 SUPREME COURT REPORTS [2021] 2 S.C.R.

A a.m., was presented to the Goa Bench, by which elections to the 11
municipal councils commenced. The petitions were then taken up and
heard by the learned Division Bench. Two judgments were delivered,
one by Bharati Dangre, J., and one by M.S.Sonak, J. H. H. After
discussing in some detail the relevant constitutional and statutory provisions
and the judgments of this Court and the Bombay High Court, the Division
B
Bench allowed the writ petitions as follows:
“81. In the wake of the above reasoning, we pass the following
order:
(a) Writ Petition No. 515 of 2021 (filing) is dismissed.
C (b) Writ Petition No.85 of 2021, 86 of 2021, 87/2021, 88/2021, 90/
2021, 91/2021, 524/2021 (Filing) and 525/2021 (Filing) are hereby
allowed. The impugned order dated 04/02/2021 issued by the
Director and ex-officio Additional Secretary, Municipal
Administrator/ Urban Development, Goa in so far as it concerned
the Municipal Council of Sanguem, Mormugao, Mapusa, Margao
D and Quepem is quashed and set aside.
(c) By a Writ of Mandamus, we direct the Director and ex-officio
Additional Secretary, Municipal Administrator/ Urban
Development, Goa to issue fresh Notification under sub-section 1
of Section 9 r/w. Subsection 1 of Section 10 of the Goa
E Municipalities Act, 1968 within a period of 10 days from today,
thereby ensuring inter alia, reservation for women of not less than
one-third of the total number of seats reserved for direct elections
to the Municipal Councils.
(d) While exercising the power afresh and rectifying the gross
illegalities pointed out in our judgment and order, the Director shall
F
give due weightage to our observations made therein.
(e) The State Election Commission of Goa is directed to
expeditiously notify the election programme, on the order for
reservation of seats in the Municipal Councils being issued by the
Director, Respondent No.2 and the State Election Commission
G shall align the schedule of election in a manner, to ensure its
completion by fixing up its various stages as per the Goa
Municipalities (Election) Rules, 1969 and the culmination of the
process on or before 15th April,2021.
(f) No order as to costs.”
H Stay, though requested for, was declined.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 785
[R. F. NARIMAN, J]

7. An SLP was moved by the State of Goa being SLP (C) No.3937 A
of 2021, and this Court, by its order dated 04.03.2021, was pleased to
observe:
“Issue notice.
Having heard Mr. Tushar Mehta, learned Solicitor General for
the petitioner, Mr. Atmaram NS. Nadkarni, learned Senior B
Advocate for the Respondent No.1 and Mr. Abhay Anil Anturkar,
learned counsel for the Respondent No.2, we stay the impugned
direction of the High Court as well as the Election Commission
notification which is in pursuance of the High Court judgment.
Pleadings to be completed before the next date of hearing. C
List on Tuesday, the 9th March, 2021.
Liberty is granted to learned counsel to file written arguments in
the meantime.”
8. This is how the matter has been placed before us today i.e., on
9.3.2021. Shri Tushar Mehta, learned Solicitor General appearing on D
behalf of the State of Goa, read to us Articles 243T, 243ZA, 243ZG of
the Constitution of India and Sections 9, 10 and 22 of the Goa Municipalities
Act. The aforesaid Articles mirror Part XV of the Constitution and thus,
the judgments of this Court on Part XV are extremely relevant.
9. According to the learned Solicitor General, first and foremost,
E
the bar to interference by courts in electoral matters contained in Article
243ZG(a) gets attracted as the order dated 04.02.2021 relating to
delimitation of constituencies and allotment of seats to such constituencies
is a “law” for the purposes of 243ZG(a), attracting the constitutional bar
which prohibits any court from entertaining a challenge to the aforesaid
order’s validity. For this purpose, he relied heavily on Meghraj Kothari F
v. Delimitation Commission, (1967) 1 SCR 400. Even otherwise, the
concession made by the learned Advocate General in the High Court
cannot bind a constitutional court which must give effect to a constitutional
bar in electoral matters, and once the election schedule is notified, there
is a complete judicial hands-off qua challenge to such election schedule
G
which would have the effect, in any manner, of thwarting or postponing
the aforesaid election schedule. For this purpose, he relied upon the
constitutional bar contained in Article 243ZG(b), and relied on a plethora
of case law namely, N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency, 1952 SCR 218, Durga Shankar Mehta v.
Thakur Raghuraj Singh, (1955) 1 SCR 267, Hari Vishnu Kamath v. H
786 SUPREME COURT REPORTS [2021] 2 S.C.R.

A Syed Ahmad Ishaque, (1955) 1 SCR 1104, Narayan Bhaskar Khare
(Dr) v. Election Commission of India, 1957 SCR 1081, Mohinder
Singh Gill v. Chief Election Commr., (1978) 1 SCC 405, Lakshmi
Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689, Indrajit
Barua v. Election Commission of India, (1985) 4 SCC 722, Anugrah
Narain Singh v. State of U.P., (1996) 6 SCC 303, Election Commission
B
of India v. Ashok Kumar, (2000) 8 SCC 216, Kishansing Tomar v.
Municipal Corpn., Ahmedabad, (2006) 8 SCC 352, W.B. State Election
Commission v. Communist Party of India (Marxist), (2018) 18 SCC
141, Dravida Munnetra Kazhagam v. State of T.N., (2020) 6 SCC
548, Laxmibai v. Collector, (2020) 12 SCC 186. He also relied on
C judgments which in other contexts, such as cooperative societies for
example, accepted what is laid down in Ponnuswamy’s judgment even
without any constitutional or statutory bar, stating that the only method
of challenging an election is after the election process is over, by means
of an election petition. For this purpose, he relied upon Section 22 of the
Goa Municipalities Act which, according to him, contained grounds wide
D
enough to set aside the entire election.
10. Shri Mukul Rohatgi, learned Senior Advocate appearing on
behalf of the appellant in civil appeal arising out of SLP(C) Diary No.
6385/2021, referred to the judgment in Lakshmi Charan Sen v. A.K.M.
Hassan Uzzaman (supra) and in particular the passage about how a
E court ought not to interfere with an election at a stage in which the
election process is “imminent” i.e., about to start. He then relied upon
Election Commission of India v. Ashok Kumar (supra) for the
proposition that even if there were certain faults after an election process
is underway, these faults must be ignored as they can always be the
F subject matter of an election petition after the elections are complete.
For this purpose, he also relied heavily upon Election Commission of
India v. Shivaji, (1988) 1 SCC 277 and read from Chandrachud, J.’s
judgment in W.B. State Election Commission v. Communist Party of
India (Marxist) (supra) speaking of a judicial hands-off until the election
process is over.
G
11. Shri P.S. Narasimha, learned Senior Advocate appearing on
behalf of the SEC, relied upon the judgments in Kishansing Tomar v.
Municipal Corpn., Ahmedabad (supra) and Anugrah Narain Singh
v. State of U.P. (supra) and emphasized the fact that timely elections
had to be held for which the SEC alone was in charge. He pointed out
H that a huge machinery had to be set up and was set up pursuant to the
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 787
[R. F. NARIMAN, J]

election notification that has been issued, all of which would be set at A
naught if the impugned judgment is not set aside. He further added that
the observations made by the impugned judgment on the State Election
Commission’s indolence and non-action were not fair to the Commission
and asked that they be deleted.
12. Shri Vinay Navare, learned Senior Advocate appearing on B
behalf of the appellant in civil appeal arising out of SLP(C) Diary No.
6385/2021, also emphasized the non obstante clause contained in Article
243ZG. He also went into and attacked the judgment’s findings on
women’s reservation not being correctly made and that the rotation
principle was not correctly observed. He strongly advocated that the de
minimis non curat lex principle be applied to these situations particularly C
when the election process is already underway. So far as the judgment
striking down the impugned order on the ground that OBC reservation
was less than 27% as mandated by Section 9(2)(bb) of the Goa
Municipalities Act, he argued that the judgment itself made it clear that,
though not raised in the writ petitions, the Judges took it up suo motu D
and set aside the order even on this ground.
13. Shri Atmaram Nadkarni, learned Senior Advocate appearing
on behalf of first Respondent in civil appeal arising out of SLP(C) No.
3937/2021, was at pains to point out that both Shri Mehta and Shri Rohatgi
did not challenge the impugned judgment on merits. He was also at
E
pains to point out that in the facts of the present case, there was no
delimitation commission which is headed by a retired judge but the entire
exercise of delimitation and reservation is done by an executive officer
of the Government. He argued that this Court ought not to exercise its
jurisdiction under Article 136 of the Constitution at all in view of the fact
that the SEC in the present case was not an independent body but was F
acting through the Law Secretary, Government of Goa, which is what
led to the order dated 04.02.2021. He strongly relied upon two earlier
Bombay High Court judgments in which solemn statements had been
made before the High Court that the State Government would issue
reservation notifications at least 3 weeks before the notification which
G
lays down the schedule for elections. He further argued that the lightning
speed with which everything was done on one day and which was
correctly commented upon by the High Court judgment showed complete
non-application of mind insofar as reservation of women/SCs/STs/OBCs
and the principle of rotation was concerned. He also added that there
was malice in law so far as the SEC is concerned, as has been found by H
788 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the High Court. Contrary to assurances made before earlier Division
Benches, the State Government first amended Section 10 of the Goa
Municipalities Act and thereafter published the impugned order reserving
Municipal Wards for various categories, and then announced the elections
without waiting for at least three weeks. The High Court was not told
that on 05.02.2021 itself the SEC had made up its mind to hold the election
B
on 20.03.2021. Had this fact been disclosed to the High Court, it could
have heard the writ petitions much before 22.2.2021. He also stressed
the fact that despite the fact that the State Government offices begin at
9:30 a.m., a notification was pulled out at 9:00 a.m. on 22.02.2021 so as
to forestall the High Court from commencing the hearing of the writ
C petitions with a fait accompli, namely, that the election process has
now started. He also argued that even after our order dated 04.03.2021,
the Goa SEC issued a notification on 04.03.2021, not adhering to the
original timelines fixed but extending the time period for filing of
nominations from 04.03.2021 till 06.03.2021 and thus rescheduled the
elections. According to the learned Senior Advocate, the bar contained
D
in Article 243 ZG(a) and (b) do not apply on the peculiar facts of this
case. Further, the High Court judgment was correct on merits so far as
women’s reservation was concerned as Article 243T mandates a
reservation of at least one-third, using the word “shall” and using the
words “not less than”, making it clear that in the case of a fraction, the
E fraction has to be rounded up to the figure one. He also relied upon a
plethora of judgments in order to buttress his submissions.
14. Shri Vivek Tankha, learned Senior Advocate appearing for
the first Respondent in civil appeal arising out of SLP(C) No. 4121/
2021, emphasized that the SEC that is constituted under Article 243K is
F on par with the Election Commission of India. For this, he emphasized,
in particular, the proviso in Article 243K(2) which makes it clear that the
State Election Commissioner shall not be removed from his office except
in like manner and on the like ground as a Judge of a High Court, and the
conditions of service of the State Election Commissioner shall not be
varied to his disadvantage after his appointment. This provision, according
G to the learned Senior Advocate, ensures that the SEC is an independent
constitutional functionary which is to oversee elections conducted at
Panchayat and Municipal levels. The whole problem in the present case
has arisen only because this mandate of the Constitution has been flouted
by the Government of Goa in that the Law Secretary has been given
H additional charge and made the State Election Commissioner, leading to
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 789
[R. F. NARIMAN, J]

the SEC not functioning as an independent body and, in fact, acting so as A
to pre-empt the jurisdiction of the High Court in challenging a notification
issued by the Director under Section 10 of the Goa Municipalities Act.
He reiterated the facts of this case as pointed out by Shri Nadkarni and
relied, in addition, to Bendict Denis Kinny v. Tulip Brian Miranda &
Ors., (2020) SCC Online 802 for the proposition that the High Court’s
B
doors are never closed under Article 226 of the Constitution of India in
deserving matters, in particular where the court’s process is sought to
be overreached by a non-functioning non-independent State Election
Commission.
15. Shri Ninad Laud, learned counsel appearing on behalf of the
intervenor in SLP(C) No. 3937/2021, cited the judgment in Anugrah C
Narain Singh v. State of U.P. (supra) and pointed out that under the
Goa Municipalities Act, just as under the UP Act that was considered in
that case, orders of delimitation, reservation and allotment of seats do
not statutorily have the force of law, and can thus be challenged in a writ
petition filed under Article 226 of the Constitution of India. He argued D
that this decision distinguishes Meghraj’s case (supra) and would be
applicable on the facts contained in the present case, as a result of which
it was within the jurisdiction of the High Court to strike down the order
of the Director reserving seats in wards dated 04.02.2021. He also made
a reference to various provisions of the Goa Municipalities Act which
specifically provide that when fractions are to be taken into account, E
they should be ignored. Such provision is conspicuous by its absence in
Sections 9 and 10 of the Goa Municipalities Act, which is required to
follow the constitutional mandate that is contained in Article 243T of the
Constitution of India.
16. Having heard learned counsel for all parties, it is important to F
emphasize a few background facts before coming to the impugned
judgment in the present case. In Dnyaneshwar Narso Naik v. State of
Goa, WP No. 179/2020, a Division Bench of the Bombay High Court at
Goa, by its judgment dated 11.12.2020, (in the context of Zilla Panchayat
elections in Goa) recorded as follows: G
“98. In this case, there is yet another disturbing feature. Despite
repeated letters and reminders from the SEC commencing from
11.06.2019 to the State Government requiring the State Government
to complete the exercise of delimitation, reservation, and rotation
of reserved seats, such exercise was completed and notified only H
790 SUPREME COURT REPORTS [2021] 2 S.C.R.

A on 20.02.2020, knowing fully well that the term of the earlier
members was to expire on 24.03.2020 and the SEC would require
a minimum 26 days to complete the election process. As noted
earlier, the learned counsel for the Petitioners have pointed out
that the purpose for this delay and the issuance of forthcoming
Notification by the SEC was to preempt any challenges to the
B
impugned Notification dated 20.02.2020 before the Constitutional
Court. The learned counsel for the Petitioners pointed out that
this is invariably done so that once the election process sets in, the
Constitutional Courts are extremely reluctant to interfere with the
election process in deference to the provisions in Article 243-O of
C the Constitution.
xxx xxx xxx
101. Thereafter, on account of the COVID-19 Pandemic situation,
the election could not be held on 22nd March 2020 as scheduled.
On 14.10.2020, this Court ordered these matters to be placed for
D final hearing in the week commencing from 23.11.2020. The final
hearing commenced on 24.11.2020. During the final hearing,
Notifications were issued fixing the date of polling on 12.12.2020.
Once again it was contended now that the election process is so
far advanced, this Court ought not to grant any reliefs to the
E Petitioners. Thus, by delaying the issuance of impugned
Notifications, the State Government has virtually succeeded in
depriving the Petitioners of a reasonable opportunity of seeking
judicial review before this Court. Again, there is no explanation
whatsoever in the affidavit filed on behalf of the State Government
as to why Notifications regarding reservation were not issued
F earlier even though the SEC was constantly reminding the State
Government for issuance of the same.
102. The learned Advocate General has now, however, made a
statement that hereafter the exercise of notifying reservations
will be made at least three weeks before any Notification is issued
G under Rule 10(1) of the said Rules to commence the election
process. According to us, this period of hardly three weeks is too
short and this exercise of notifying the reserved constituencies
must be made at least two months before the date of issuance of
Notification under Rule 10(1) of the said Rules. We, therefore,
H direct the State Government to issue Notification reserving and/
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 791
[R. F. NARIMAN, J]

or rotating reserved seats at least two months before the date of A
issuance of Notification under Rule 10(1) by which the election
process to the Panchayats commences.”
17. Likewise, a few days later, a Division Bench of the High Court,
by an order dated 21.12.2020, in Sujay S. Lotlikar v. State of Goa, LD-
VC-CW-359-2020, also specifically recorded: B
“5. Today, the learned Advocate General for the State of Goa
makes a statement that the notifications for delimitation and
reservation will be issued by the appropriate authorities whom he
represents, at least three weeks prior to the date of the notification
of the schedule for municipal election.” C
18. This order is important in the facts of the present case as it
dealt directly with Municipal elections in some of the very wards that
were before the High Court in the impugned judgment.
19. Contrary to the Advocate General’s statement made before
two Division Benches of the High Court, the State Government amended D
Section 10 of the Goa Municipalities Act by adding a proviso on
04.02.2021, which then provided that such orders shall be issued at least
7 days before the date of notification of the General Elections. Armed
with this amendment, the Law Secretary as State Election Commissioner,
by a communication dated 05.02.2021 to the Director, Urban E
Development, requested the aforesaid Director to issue an order under
Section 10 of the Goa Municipalities Act “at an early date” insofar as
the 11 Municipal Councils in this case are concerned, as elections are
proposed to be held on by 20.03.2021. With retrospective effect and
with lightning speed, the Director complied with this request on a day
previous to this date, and provided for reservations vide order dated F
04.02.2021 in all 11 Municipal Councils for women/SCs/STs/OBCs. To
make matters worse, the SEC did not disclose to the Court that vide a
note dated 05.02.2021, elections were to be held on 20.03.2021. The
High Court was thus lulled into a false sense of security when writ
petitions that were filed between 9th and 12th February, 2021, challenging G
the 04.02.2021 order, were taken up on 15.02.2021 and were then set
down for final hearing on 22.02.2021. To make matters worse, when the
Division Bench of the High Court commenced hearing these writ petitions
at 9.00 a.m. on 22.02.2021, it was provided with a notification announcing
the schedule of elections at 9:00 a.m. on 22.02.2021. This is despite the
fact that the State Government’s offices open only at 9:30 a.m. It is in H
792 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the background of these disturbing facts that the writ petitions were
then taken up and decided by the Division Bench of the High Court on
01.03.2021.
20. Both Judges delivered judgments in this case. The judgment
of Bharati Dangre, J. held as follows:
B “5. Nine Writ Petitions came to be instituted before this Court,
pursuant to the order passed on 04/02/2021 by the respondent
no.2 posing a challenge to the determination of the reservation of
seats in different Wards of Municipal Councils for the purpose
ensuing Municipal elections. The said order reserved the seats
C for different categories being Scheduled Castes, Scheduled Tribes,
Other Backward Classes and women and purported it to be
complaint with the provisions contained in the Goa Municipalities
Act, 1968. The aforesaid Writ Petitions were filed before this
Court between 09/02/2021 to 12/02/2021 and came to be listed
before the Division Bench on 15/02/2021, when notice came to
D be issued for final disposal, making it returnable on 22/02/2021.
The learned counsel for the Petitioners submitted that this was on
the understanding that up to 22nd February 2021, the Respondents
will not declare the election schedule. However, on 22nd February
2021 itself when the matters were to be taken up for final disposal,
E the State Election Commission (SEC) declared the election
schedule. On the returnable date we heard the respective Counsel
for the petitioners and the learned Advocate General. Mr. D.
Pangam, learned Advocate General also submitted that the
issuance of such election schedule will not be urged as a ground
to deny any reliefs to the Petitioners if such reliefs are indeed
F found to be due. He, however, clarified that he would be submitting
that this Court ought not to grant any reliefs to the Petitioners
since, even on the date of the institution of the petitions, the elections
to the Municipal Councils were quite imminent.
xxx xxx xxx
G
13. Mr. Joshi, learned counsel appearing for the SEC admitted
that there has been constitutional infraction on the part of the
Director, in failing to reserve not less than one-third of the total
number of seats in Mormugao and Mapusa Municipal Councils,
in favour of women. On questioned whether the Commission has
H pointed out the flaw, his answer is in the negative. He submits
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 793
[R. F. NARIMAN, J]

that the issue of reservation is within the purview of the Directors A
and therefore, notwithstanding the constitutional or statutory
infraction, the SEC is helpless and has no choice but to proceed
with the elections based on the impugned order dated 4th February
2021 and since it is bestowed with a duty to conduct timely
elections.
B
xxx xxx xxx
16. Pertinent to note that the noting itself provide solution, by
enlisting the mechanism to be adopted which reflect, that since
reservation for women is done by rotation and after delimitation
done in 2015, rotation end up in three terms, commencing from C
2015 and going to end in 2026. After charting the reservation
which is already provided for women category in 2015 and 2021,
the solution offered is the remaining Wards which are not reserved
for women in the earlier two elections, may be reserved in 2026.
Implicitly, the stand taken is that in order to complete the fraction,
the seat would be rounded off in the three terms by rotation, in D
order to avoid excessive reservation to women and therefore the
aforesaid solution.
We are afraid whether this would serve the intention of clause 3
of Article 243T as well as the mandate of the State Legislation,
which, effectively read would mean that on constitution of a E
Municipal Council for every term, not less than 1/3rd seats shall
be reserved for women. The expression used in the Constitution
as well as in the Municipalities Act, being “not less than” or “no
less than”, make it clear that even a fraction cannot be ignored
because by ignoring the same, the reservation would be minimized F
than 1/3rd and if it is done so, it would amount to infraction of the
constitutional mandate.
xxx xxx xxx
18. Keeping in mind the aforesaid philosophy in introducing
reservation for women by the Constitution and subsequently in G
the State Legislation, we are of the firm opinion that the course
adopted by the respondent no.2 violate the mandate of law. The
solution offered by the respondent no.2 in taking forward the
reservation and to be adjusted within the three terms, is also,
according to us defeat the very purpose as the mandate contained
H
794 SUPREME COURT REPORTS [2021] 2 S.C.R.

A in the first proviso appended to sub-section 1 of Section 9 which
is to be followed in every Council which means, the Municipal
Council constituted or deemed to be constituted under the Act for
a Municipal area and as a body corporate with a prescribed tenure.
The fraction even if it is created in calculating 1/3rd reservation
cannot be permitted to be rounded off towards the earlier
B
denomination and the normal principle for rounding off, which is
based on logic and common sense; “if part is one half or more, its
value shall be increased to one and if less than one half the value
shall be ignored”, cannot be made applicable here.
In Ashok Maniklal Harkut Vs Collector, Amravati and
C others [1988 Mh.L.J.378], the Full Bench of this Court, in the
context of provisions of Section 55(1) and 55(2) of the Maharashtra
Municipalities Act held that a valid no-confidence motion must be
passed by not less than two-thirds of the total number of councilors
was mandatory. The Full Bench held that the total number of
D votes must not be less than two-third though they may be more.
The fraction cannot be ignored since if the fraction is ignored
then the majority will be two-third of the councilors. Thus, where
the total number of elected councilors at the time when the motion
was moved 19, support of only 13 councilors, being less than two-
third, was not sufficient to carry such a no-confidence motion.
E
The Hon’ble Apex Court has reiterated the view taken by Full
Bench of this Court and in the case of Ganesh Sukdev Gurule
v/s. Tahsildar Sinnar & Ors (2019) 3 SCC 211. The issue for
deliberation before the Apex Court involved Section 35 of the
Maharashtra Village Panchayats Act, 1959, which is a provision
F for no confidence motion and sub-section 3 of the said Section
indicating the requirement of majority of not less than two third of
total number of members who are for the time being entitled to sit
and vote. Construing the phrase “not less than”, Their Lordships
of the Apex Court, dealing with the arguments that when the
G fraction arrived is 5.33, it should be rounded to 5 has held as
under:
’12. The next submission pressed by the respondent is that for
applying the principle of rounding off 5.33 votes have to be
rounded as to five. Thus, five votes are sufficient to accept
majority for the purpose of passing no-confidence motion.
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 795
[R. F. NARIMAN, J]

Whether 5.33 votes can be rounded up into 5 votes or A
requirement is at least six votes is the real issue. When there
are clear words in the statute i.e. “not less two-third of the
total number of members” applying the principle of rounding
off, 5.33 votes cannot be treated as 5. Vote of a person cannot
be expressed in fraction. When computation of a majority
B
comes with fraction of a vote that fraction has to be treated as
one vote, because votes cannot be expressed in fraction. The
principle that figure less than .5 is to be ignored and figure
more than .5 shall be treated as one, is not applicable in the
statutory scheme as delineated by Section 35. Provision of
Section 35(1) which provides for requirement for moving motion C
of no-confidence by not less than one-third of the total number
of the members who are for the time being entitled to sit and
vote at any meeting of the Panchayat, is the same expression
as used in sub-section(3). Obviously, requirement of not less
than one-third number for moving motion has to be computed
D
from total number of the members who are entitled to sit and
vote. Thus, the same expression having been used in sub-section
(3) of Section 35, both the expressions have to be given the
same meaning. Thus, one-third of total number of members
who are entitled to sit and vote have to be determined on the
strength of members entitled to vote at a particular time. The E
same meaning has also to be applied while computing two-
third majority.’
In light of the aforesaid authoritative pronouncements, we find
that the approach adopted by the respondent no.2 would stare in
face of the constitutional mandate, reserving 1/3rd seats for F
women and to this extent the impugned order dated 04.02.2021 is
liable to be quashed. By the same reasoning, the impugned order
which reserve 8 seats in Margao Municipal Council where the
total number of seats to be filled in are 25, must also be quashed
and set aside.
19. xxx xxx xxx G
The Director has acted in breach of the Constitution as well as
the statutory provision and the impugned order dated 04.02.2021
is therefore required to be quashed and set aside as not adhering
to the mandate of law.
xxx xxx xxx H
796 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 23. When our attention is invited to the action of the Director and
on the conduct of the Election Commission as a mute spectator,
which in fact was expected to act and live upto its role conferred
by the constitution, ensuring free and fair elections, we are not
expected to be oblivious to the situations which have been drawn
to us. We do not appreciate the helplessness expressed by the
B
State Election Commission, which is supposed to be an authority
independent of the Government. If the illegality has been noticed
by the State Election Commission, we expect it to act with
promptitude and issue appropriate directions to the Director to
rectify the said action by ensuring that it follows the mandate of
C the constitution rather than to rush and issue the election schedule.
Its power of superintendence over the “conduct of elections” is
wide enough, which include the power to take all steps necessary
for conduct of free and fair election. The silence on part of the
constitutional functionary, according to us, is highly detrimental to
the democratic concept of this country. We say nothing more.
D
xxx xxx xxx
26. We would have appreciated the submission advanced by the
learned Advocate General that mere absence of policy would not
lead to arbitrariness, albeit, we have before us instances as reflected
in the Noting from where we have discerned that absence of
E policy has resulted into non discernable and non justifiable rotation
of seats in different wards of respective Municipal Councils. The
prescribed reservation of women as per the mandate is one such
instance. Similar is the case in respect of the OBC reservations,
though none of the petitioners before us raised the said ground
F before us, however, since we have perused the Noting, we are
enlisting it as one of the aspect demonstrating non application of
mind and attitude towards flouting the mandate of the State
legislation. The Goa Municipalities Act, prescribes reservation for
other backward classes based on concentration of the population
of the said class in a particular ward. By the (amendment) Act,
G 2016 clause (bb) of sub section 2 of Section 9 has prescribed
27% number of seats to be filled in the election of Municipal Council
to the person belonging to other back ward classes and such seats
are to be allotted by reservations to different wards in the Council.
The Noting produced before us reflect that there was utter failure
H to adhere to the said the proportion and other Municipal Councils
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 797
[R. F. NARIMAN, J]

where 27% of seats are reserved for other backward classes, the A
proportion of reservation in other Municipal Council stood to the
percentage of 20% being in Valpoi, Pernem and Sanguem. In the
remaining Municipal Councils, the percentage of reserved seats
for OBC vary from 21% to 25%.
Another instance of arbitrariness or non-application of mind is the B
reservation in ward no. 1 in Sanguem Municipal Council; the ward
is reserved for Scheduled Tribe category whereas the percentage
of population in the Ward of ST is 0.23% and a specific averment
is made in the petition, which is not denied is there is only one
voter belonging to the said category. If the respondent no. 2 would
have paid attention to the wording applied in Section 10 “having C
regard to the concentration of the population” and given the said
term significance as population of SC, ST and OBC, the said error
was avoidable. By ignoring the concentration of the population,
the situation that has arisen wherein ward no. 10 which has ST
population of 206 as against total population of 681, by following D
cycle of rotation, since in the year 2010, ward no. 4 which had
maximum ST population and it was reserved in the next election,
according to us, the next highest population ward should have
been reserved in the year 2013. The challenge to the reservation
of the said provided in the year 2021 as arbitrary, justify the said
accusation. E
xxx xxx xxx
31. Now we turn to the relief which the petitioners are entitled to.
Once we have recorded that our interference in the process of
election has necessitated on account of the flaws which defeat
the constitutional mandate of reservation and rotation, our endeavor F
is to ensure that our decision to intervene do not cause any
interruption or obstruction or in any way to protract the election
procedure but on the contrary it subserve the progress of election
and facilitates its completion. Amongst the 11 Municipal Councils
whose process of reservation and rotation has been alleged to be
G
flawed one, their term has already expired and it is being informed
that its administration has been taken over by the body of
Administrators. By the Notification published on 14/01/2021, the
SEC has already postponed the elections for a period of three
months i.e. till April 2021 or the election date which may be
determined by the Commission. By passing the impugned order H
798 SUPREME COURT REPORTS [2021] 2 S.C.R.

A on 04/02/2021 the reservation has been determined by the
respondent No.2 and on 22/02/2021 the election programme has
been notified by the respondent No.3. On perusal of the said
programme, it is apparent that it will consume a period of 22 days
from the last date of filing of nomination till the declaration of
result on 22/03/2021. Since the Municipal Councils are already
B
under the management of the administrator and the time scheduled
for completion of election has been extended by the election
Commission till 14/04/2021, and since from the date of
pronouncement of our judgment still there is a period of 45 days
available, in our opinion on rectification of errors which amount to
C infringement the constitutional mandate not only qua the reservation
to women but also other infractions which we have noticed, a
fresh programme shall be notified. If the authorities move with
lightning speed, which they are expected to, since in the exigency
of the situation which prompted the SEC to be agile in issuing the
Notification declaring the elections when the Writ Petitions were
D
pending before the Court, challenging the impugned Notification,
expecting the same promptitude by the election Commission and
on behalf of the State Government to rectify its procedure, and
ensure free and fair election which is a hallmark of democracy,
we direct the respondent No.2 to redetermine the reservation of
E seats in the Wards of the Municipal Council in the light of the
observations made by us in the judgment. This exercise shall be
undertaken within a period of 10 days from today, which will leave
sufficient time for the SEC to notify the election programme and
complete the election process before 15/04/2021, by adhering to
all the necessary stages as prescribed under the Goa Municipalities
F
Election Rules, 1969.”
21. Likewise, M.S.Sonak, J. delivered a concurring judgment
holding:
“48. Applying the principles laid down by the Full Bench and the
Hon’ble Supreme Court to the position of reservation in Mormugao
G
Municipal Council, it will have to be held that the reservation of
only eight seats out of a total number of 25 seats in favour of
women is a reservation which is less than one-third the total number
of seats to be filled by direct election to the Mormugao Municipal
Council. Similarly, the reservation of only six seats from out of a
H total number of 20 seats to be filled by direct election to the Mapusa
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 799
[R. F. NARIMAN, J]

Municipal Council amounts to a reservation less than one-third of A
the total number of seats to be filled by direct election. The Director
has acted in breach of both constitutional as well as statutory
provisions in failing to provide reservation of not less than one-
third of the total number of seats, in favour of women, and to that
extent the impugned order dated 4th February 2021 is required to
B
be quashed and set aside.
49. Mr. Joshi, learned counsel appearing for the SEC admitted
that there has been constitutional infraction on the part of the
Director, in failing to reserve not less than one-third of the total
number of seats in Mormugao and Mapusa Municipal Councils,
in favour of women. He, however, on instructions stated that the C
SEC is not concerned with the issue of reservation and therefore,
notwithstanding the constitutional or statutory infraction, the SEC
is quite helpless and will have no choice but to proceed with the
elections based on the impugned order dated 4th February 2021
howsoever defective such order may be. D
50. At least we did not hear any arguments from the learned
Advocate General that there was no constitutional or statutory
infraction on the part of the Director in reserving less than one-
third of the total number of seats in favour of women.
xxx xxx xxx E
51. The “understanding” of the Director of the constitutional
provisions in Article 243-T or statutory provisions in Section 9 of
the said Act cannot be the basis for sustaining the impugned order.
The understanding of the Director is far from reasonable contrary
to what was contended by the learned Advocate General. Neither
the Constitution nor the said Act gives the Director three election F
terms i.e. 15 years to comply with the constitutional and statutory
mandate of reserving not less than one- third of the total number
of seats to be filled by direct election in “every municipality”.
Both constitutional provisions as also statutory provisions make it
abundantly clear that for each term the Municipality or Municipal G
Council, must have at least one-third women councilors, for a
Municipality or Council to be regarded as a validly constituted
Municipality or Council.
52. This understanding or theory of complying with the
constitutional or statutory mandate in three installments spread H
800 SUPREME COURT REPORTS [2021] 2 S.C.R.

A over 15 years is some unique device adopted by the Director in a
futile attempt to justify the gross constitutional and statutory
infraction. Such a justification finds no basis either in the
Constitution or the said Act. Such a justification is neither legal
nor reasonable. Based on such a justification, there is no question
of sustaining the order dated 4th February 2021.
B
xxx xxx xxx
54. From the aforesaid, it is apparent that the Director carries the
impression that both the Constitution as well as the said Act provide
that the reservation in favour of women must not exceed one-
third the total number of seats, when in fact, both the Constitution
C as well as the said Act provide exactly opposite. The Director
seems to hold the impression that reserving seven seats out of a
total of 20 seats in Mapusa Municipal Council will “exceed and
violate the mandate of 1/3rd reservation which is 20 seats”. Such
understanding or impression of the Director flies in the face of
D both Constitutional as well as statutory mandate that not less than
one-third of seats must be reserved in favour of the women. This
means that there can be no violation of both Constitutional as well
as statutory mandate if reservation exceeds one-third but there
will be a violation of both Constitutional as well as statutory
mandate if the reservation is less than one-third.
E
55. Since the impugned order dated 4th February 2021 is based
upon such a gross misunderstanding of the provisions of the
Constitution and the said Act, the same, will have to be quashed
and set aside. Accordingly, the first contention of the learned
Advocate General that the understanding of the Director being
F reasonable in support of the impugned order dated 4th February
2021 will have to be rejected. No understanding which results in
doing what the Constitution specifically prohibits can be held as
reasonable understanding. Any order based upon such
understanding is therefore ultimately vulnerable and will have to
G be quashed and set aside.
xxx xxx xxx
59. In the aforesaid context, we do not appreciate the helplessness
expressed by the SEC, which is supposed to be an authority
independent of the Government of Goa. The fortuitous
H circumstance that the SEC is also the Law Secretary, Government
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 801
[R. F. NARIMAN, J]

of Goa is not sufficient circumstance to express helplessness in A
the wake of an unconstitutional and ultra vires order by the Director
of Municipal Administration/Urban Development. According to
us, it was the duty of the SEC to require the Director to immediately
rectify the impugned order and to provide for reservation of less
than one-third of the seats in favour of women, rather than to
B
rush and issue election schedule.
xxx xxx xxx
63. The contention that the writ Court ought not to interfere with
when the elections are imminent cannot be sole ground to defend
an indefensible order or a patent infraction of the constitutional or C
statutory mandate. In this case, the learned Advocate General,
apart from contending that “understanding” of the Director was
not unreasonable, did not urge even a single contention in defence
of the Director’s failure to comply with the constitutional mandate
in Article 243-T(3) or Section 9(1) of the said Act. Normally, at
least plausible defence is put forth and the contention is that the D
detailed adjudication may be postponed until the conclusion of the
election process. In this case, however, the only contention was
that this Court should adopt hands-off doctrine because the
elections were imminent. The “hands-off doctrine” has been
evolved not to legalize or immunize patently unconstitutional orders E
or to enable the parties to create a situation fait accompli.
xxx xxx xxx
77. The aforesaid means that there is a total disconnect between
the noting prepared and relied upon by the Director and his affidavit
dated 23rd February 2021. The noting refers to the concentration F
of ST population whereas the affidavit in terms states that there
is no mandate to reserve seats for SC or ST merely because the
population of SC or ST in those particular wards is high. The
Director has gone to the extent of stating that the Petitioners’
contention draws no support either from the Constitution or the G
said Act. In the affidavit, there is no explanation why the rotation
mandate has been openly flouted.
78. Based on the disconnect between the affidavit filed by the
Director and his Noting, the impugned order in so far as it reserves
the ward Nos.4 and 7 in favour of ST, ignoring the mandate of
H
802 SUPREME COURT REPORTS [2021] 2 S.C.R.

A rotation of reserved seats, will have to be set aside. Besides, the
impugned notification, in so far as it concerns Margao Municipal
Council will also have to be set aside on account of the
constitutional and statutory infraction of reserving less than one-
third seats in favour of women.
B 79. The Director after having admitted that there was no policy
based on which the reservation has been made or rotation policy
implemented, appears to have regarded the absence of such policy
as a licence to make reservations based on his whims and caprices.
Different yardsticks have been applied in respect of different
Municipal Councils. There is no uniform policy even for the
C implementation of the rotation mandate in the same councils. The
entire exercise of making reservations to no less than 11 councils
was completed by the Director in a single day i.e. 4th February
2021 and even the impugned order was issued on the same date.
At least prima facie, even the amended provisions of section
D 9(2)(bb) of the said Act in relation to 27% reservations for OBCs
appear to have been completely overlooked. The Noting that is a
precursor for the issuance of the impugned order dated 4th
February 2021 and was prepared on 4th February 2021 itself in a
tearing hurry and soon thereafter Law Secretary who is holding
the post of SEC issued the election schedule on 22nd February
E 2021 even though, these petitions had already been instituted and
were posted for final disposal on 22nd February 2021. Based upon
these artificially created events, the entire defence was to press
forth the hands-off doctrine and overlook the gross illegalities and
the constitutional and statutory infraction by the Director.
F 80. For all the above reasons I concur and join my Sister, Hon’ble
Smt. Justice Bharati Dangre in allowing all the writ petitions except
Writ Petition No. 515 of 2021 and in issuing the operational
directions.”
22. This reasoning then led to the final conclusion which, as has
G been extracted above, struck down the order dated 04.02.2021 and
directed the Director, Urban Development to issue a fresh order within
10 days from the date of the judgment giving due weightage to the
observations contained in the judgments. Further, the SEC was then
directed to notify the election programme afresh so that the election
H process culminates on or before 15.04.2021.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 803
[R. F. NARIMAN, J]

23. Part IXA of the Constitution titled “The Municipalities” was A
inserted by the Constitution (Seventy-Fourth) Amendment Act, 1992 with
effect from 1st June, 1993. Article 243P defines “Municipal Area” and
“Municipality” as follows:
243P. Definitions.
xxx xxx xxx B
(d) “Municipal area” means the territorial area of a Municipality
as is notified by the Governor;
(e) “Municipality” means an institution of self-government
constituted under article 243Q;
xxx xxx xxx C
24. Municipalities are then divided into three categories under
Article 243Q. The first is the Nagar Panchayat for a transitional area
i.e., an area in transition from a rural to an urban area; the second is the
Municipal Council for a “smaller urban area” and third, a Municipal
Corporation for a “larger urban area” as follows:
D
243Q. Constitution of Municipalities.
(1) There shall be constituted in every State, -
(a) a Nagar Panchayat (by whatever name called) for a transitional
area, that is to say, an area in transition from a rural area to an
urban area;
E
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area,
in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be
constituted in such urban area or part thereof as the Governor F
may, having regard to the size of the area and the municipal services
being provided or proposed to be provided by an industrial
establishment in that area and such other factors as he may deem
fit, by public notification, specify to be an industrial township.
(2) In this article, “a transitional area”, “a smaller urban area” or
G
“a larger urban area” means such area as the Governor may,
having regard to the population of the area, the density of the
population therein, the revenue generated for local administration,
the percentage of employment in non-agricultural activities, the
economic importance or such other factors as he may deem fit,
specify by public notification for the purposes of this Part. H
804 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 25. Article 243T is important and provides for reservation of seats
in Municipalities as follows:
243T. Reservation of seats.
(1) Seats shall be reserved for the Scheduled Castes and the
Scheduled Tribes in every Municipality and the number of seats
B so reserved shall bear, as nearly as may be, the same proportion
to the total number of seats to be filled by direct election in that
Municipality as the population of the Scheduled Castes in the
Municipal area or of the Scheduled Tribes in the Municipal area
bears to the total population of that area and such seats may be
C allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved
under clause (1) shall be reserved for women belonging to the
Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved
D for women belonging to the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be filled by direct election
in every Municipality shall be reserved for women and such seats
may be allotted by rotation to different constituencies in a
Municipality.
(4) The offices of Chairpersons in the Municipalities shall be
E
reserved for the Scheduled Castes, the Scheduled Tribes and
women in such manner as the Legislature of a State may, by law,
provide.
(5) The reservation of seats under clauses (1) and (2) and the
reservation of offices of Chairpersons (other than the reservation
F for women) under clause (4) shall cease to have effect on the
expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State
from making any provision for reservation of seats in any
Municipality or offices of Chairpersons in the Municipalities in
G favour of backward class of citizens.
26. Under Article 243U(1), every Municipality, unless earlier
dissolved under any law for the time being in force, shall continue for
five years from the date appointed for its first meeting and no longer.
Importantly, Article 243U(3) provides:
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 805
[R. F. NARIMAN, J]

243U. Duration of Municipalities, etc. A
xxx xxx xxx
(3) An election to constitute a Municipality shall be completed, -
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date
of its dissolution: B
Provided that where the remainder of the period for which the
dissolved Municipality would have continued is less than six months,
it shall not be necessary to hold any election under this clause for
constituting the Municipality for such period.
27. Article 243ZA provides for elections to Municipalities as C
follows:
243ZA. Elections to the Municipalities.
(1) The superintendence, direction and control of the preparation
of electoral rolls for, and the conduct of, all elections to the
Municipalities shall be vested in the State Election Commission D
referred to in article 243K.
(2) Subject to the provisions of this Constitution, the Legislature
of a State may, by law, make provision with respect to all matters
relating to, or in connection with, elections to the Municipalities.
28. Article 243K of the Constitution provides as follows: E
243K. Elections to the Panchayats.
(1) The superintendence, direction and control of the preparation
of electoral rolls for, and the conduct of, all elections to the
Panchayats shall be vested in a State Election Commission
consisting of a State Election Commissioner to be appointed by F
the Governor.
(2) Subject to the provisions of any law made by the Legislature
of a State, the conditions of service and tenure of office of the
State Election Commissioner shall be such as the Governor may
by rule determine: G
Provided that the State Election Commissioner shall not be removed
from his office except in like manner and on the like grounds as a
Judge of a High Court and the conditions of service of the State
Election Commissioner shall not be varied to his disadvantage
after his appointment.
H
806 SUPREME COURT REPORTS [2021] 2 S.C.R.

A (3) The Governor of a State shall, 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 State Election Commission by clause
(1).
B (4) Subject to the provisions of this Constitution, the Legislature
of a State may, by law, make provision with respect to all matters
relating to, or in connection with, elections to the Panchayats.
29. It will be noticed that Article 243ZA(1) corresponds to Article
324 contained in Part XV dealing with elections to Parliament and the
C legislative bodies of the States. Likewise, 243ZA(2) corresponds to Article
328 contained in the same chapter.
30. Article 243ZG is important and states:
243ZG. Bar to interference by courts in electoral matters.
D Notwithstanding anything in this Constitution, —
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies,
made or purporting to be made under article 243ZA shall not be
called in question in any court;
E
(b) no election to any Municipality shall be called in question except
by an election petition presented to such authority and in such
manner as is provided for by or under any law made by the
Legislature of a State.]

F This Article corresponds to Article 329 of the Constitution
contained in Part XV.
31. The relevant provisions of the Goa Municipalities Act are
contained in Sections 8 to 10A thereof:
8. Establishment and incorporation of Councils.
G
For every municipal area there shall be a Municipal Council. Every
such Council shall be a body corporate by the name of “The ...
Municipal Council” and shall have perpetual succession and a
common seal, and shall have power to acquire, hold and dispose
of property, and to enter into contracts and may by the said name
H sue, or be sued, through its Chief Officer.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 807
[R. F. NARIMAN, J]

9. Composition of Councils. A
(1) Save as otherwise provided by this Act, every Council shall
consist of Councillors elected at ward elections;
Provided that—
(1) in every Council, no less than (1/3) seats shall be reserved B
for women;
(2) in every Council, seat shall also be reserved for Scheduled
Caste, Scheduled Tribes and Other Backward Class and for
woman belonging to Scheculed Caste, as the case may be, the
the Scheduled Tribes and Other Backward Class as provided C
in subsection (2)
(2) The Director shall from time to time by an order published in
the Official Gazette fix for each municipal area—
(a) the number of elected Councillors in accordance with the
following table: D
Class of Number of elected
Municipal area Councillors

i) ‘A’ Class The minimum number of elected Councillors shall
be 20, and for every 2500 of the voters in the E
municipal area or part thereof above 50,000 there
shall be one additional elected Councillor, so,
however, that the total number of elected
Councillors shall not exceed 25;
(ii) ‘B’ Class The minimum number of elected Councillor shall be
F
12, and for every 2500 of the voters in the
municipal area or part thereof above 10,000 there
shall be one additional elected Councillor, so,
however, that the total number of elected
Councillors shall not exceed 20;
G
(iii) ‘C’ Class The number of elected Councillors shall be 10.

(b) the number of seats, if any, to be reserved for the Scheduled
Castes, Scheduled Tribes so that such number shall bear, as
nearly as may be, the same proportion to the number of elected
H
808 SUPREME COURT REPORTS [2021] 2 S.C.R.

A Councillors as the population of the Scheduled Castes,
Scheduled Tribes in the municipal area bears to the total
population of that area and not less than one-third of such seats
shall be reserved for women and such seats shall be allotted
by rotation to different wards in the Council.
B (bb) the number of seats, if any, to be reserved for persons
belonging to the category of Other Backward Classes so that
such number shall be twenty seven percent of the number of
seats to be filled in through election in the Council and such
seats shall be allotted by rotation to different wards in the
Council.
C
(c) the number of seats for the office of Chairperson in the
Council for Scheduled Castes, the Scheduled Tribes and women
so that such number will bear as nearly as may be, the same
proportion to the number of elected Councillors as the
population of the scheduled Castes, Scheduled Tribes in the
D municipal area bears to the total population of that area and
such seats shall be allotted by rotation to different constituencies
in a Council.
(3) The reservation of seats for Scheduled Castes and Scheduled
Tribes made by an order under sub-section (2) shall cease to have
E effect when the reservation of seats for those Castes and Tribes
in the House of the People ceases to have effect under the
Constitution of India:
Provided that nothing in this sub-section shall render any person
elected to any such reserved seat ineligible to continue as a
F Councillor during the term of office for which he was duly elected
by reason only of the fact that the reservation of seats has so
ceased to have effect.
(4) Every order under sub-section (2) shall take effect for the
purposes of the next general election of the Council immediately
G following after the date of the order.
xxx xxx xxx
10. Division of municipal area into wards and reservation
of wards for women, Scheduled Castes, Scheduled Tribes
and Other Backward Class.
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 809
[R. F. NARIMAN, J]

(1) The Director shall from time to time by order published in the A
Official Gazette, fix for each municipal area the number and the
extent of the wards into which such area shall be divided. The
Director shall specify in the order the ward in which a seat is
reserved for women but in so doing he shall ensure that such a
seat its reserved from time to time by rotation in different wards
B
of the municipal area. He shall by a like order specify the wards
in which seats are reserved for Scheduled Castes, Scheduled
Tribes or the Other Backward Class, including the seats for offices
of Chairperson having regard to the concentration of population
of those Castes, or Tribes, or as the case may be, of those class,
in any particular wards. C
(2) Each of the wards shall elect only one Councillor.
(3) Every order issued under sub-section (1) shall take effect for
the purpose of the next general election immediately following
the date of such order.
D
(4) Nothing in this section shall be deemed to prevent women or
persons belonging to the Scheduled Castes, Scheduled Tribes or
Other Backward Class for whom seats are reserved in any Council,
from standing for election and being elected to any of the seats
which are not reserved.
E
10A. Election of Councils.
The superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the Council
shall be vested in the State Election Commission constituted under
section 237 of the Goa Panchayat Raj Act, 1994 (Act 14 of 1994). F
Bar contained in Articles 243ZG(b) / 329(b)
32. The locus classicus on the subject is by an early judgment of
this court which has been followed on innumerable occasions. N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency (supra),
dealt with a petition that was filed under Article 226 before the Madras G
High Court praying for a writ of certiorari in the following circumstances:
“The appellant was one of the persons who had filed nomination
papers for election to the Madras Legislative Assembly from the
Namakkal Constituency in Salem district. On 28th November, 1951,
the Returning Officer for that constituency took up for scrutiny H
810 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the nomination papers filed by the various candidates and on the
same day he rejected the appellant’s nomination paper on certain
grounds which need not be set out as they are not material to the
point raised in this appeal. The appellant thereupon moved the
High Court under Article 226 of the Constitution praying for a
writ of certiorari to quash the order of the Returning Officer
B
rejecting his nomination paper and to direct the Returning Officer
to include his name in the list of valid nominations to be published.
The High Court dismissed the appellant’s application on the ground
that it had no jurisdiction to interfere with the order of the Returning
Officer by reason of the provisions of Article 329(b) of the
C Constitution. The appellant’s contention in this appeal is that the
view expressed by the High Court is not correct, that the jurisdiction
of the High Court is not affected by Article 329(b) of the
Constitution and that he was entitled to a writ of certiorari in the
circumstances of the case.”
(at page 221)
D
33. This Court then summarized Part XV of the Constitution dealing
with elections as follows:
“In construing this Article, reference was made by both parties in
the course of their arguments to the other Articles in the same
E Part, namely, Articles 324, 325, 326, 327 and 328. Article 324
provides for the constitution and appointment of an Election
Commissioner to superintend, direct and control elections to the
legislatures; Article 325 prohibits discrimination against electors
on the ground of religion, race, caste or sex; Article 326 provides
for adult suffrage; Article 327 empowers Parliament to pass laws
F making provision with respect to all matters relating to, or in
connection with, elections to the legislatures, subject to the
provisions of the Constitution; and Article 328 is a complementary
article giving power to the State Legislature to make provision
with respect to all matters relating to, or in connection with,
G elections to the State Legislature. A notable difference in the
language used in Articles 327 and 328 on the one hand, and Article
329 on the other, is that while the first two articles begin with the
words “subject to the provisions of this Constitution”, the last article
begins with the words “notwithstanding anything in this
Constitution”. It was conceded at the bar that the effect of this
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 811
[R. F. NARIMAN, J]

difference in language is that whereas any law made by Parliament A
under Article 327, or by the State Legislatures under Article 328,
cannot exclude the jurisdiction of the High Court under Article
226 of the Constitution, that jurisdiction is excluded in regard to
matters provided for in Article 329.”
(at pages 224,225) B
34. This court held that “election” has to be understood in the
wider sense as follows:
“The discussion in this passage makes it clear that the word
“election” can be and has been appropriately used with reference
to the entire process which consists of several stages and C
embraces many steps, some of which may have an important
bearing on the result of the process.”
(at page 228)
35. Dealing with the specific contention of the bar contained in D
Article 329(b) shutting out proceedings under Article 226, the Court then
held:
“The question now arises whether the law of elections in this
country contemplates that there should be two attacks on matters
connected with election proceedings, one while they are going on
E
by invoking the extraordinary jurisdiction of the High Court under
Article 226 of the Constitution (the ordinary jurisdiction of the
courts having been expressly excluded), and another after they
have been completed by means of an election petition. In my
opinion, to affirm such a position would be contrary to the scheme
of Part XV of the Constitution and the Representation of the People F
Act, which, as I shall point out later, seems to be that any matter
which has the effect of vitiating an election should be brought up
only at the appropriate stage in an appropriate manner before a
Special Tribunal and should not be brought up at an intermediate
stage before any court. It seems to me that under the election
law, the only significance which the rejection of a nomination paper G
has consists in the fact that it can be used as a ground to call the
election in question. Article 329(b) was apparently enacted to
prescribe the manner in which and the stage at which this ground,
and other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by necessary H
812 SUPREME COURT REPORTS [2021] 2 S.C.R.

A implication from the language of this provision that those grounds
cannot be urged in any other manner, at any other stage and before
any other court. If the grounds on which an election can be called
in question could be raised at an earlier stage and errors, if any,
are rectified, there will be no meaning in enacting a provision like
Article 329(b) and in setting up a Special Tribunal. Any other
B
meaning ascribed to the words used in the article would lead to
anomalies, which the Constitution could not have contemplated,
one of them being that conflicting views may be expressed by the
High court at the pre-polling stage and by the election tribunal,
which is to be an independent body, at the stage when the matter
C is brought up before it.
I think that a brief examination of the scheme of Part XV of the
Constitution and the Representation of the People Act, 1951, will
show that the construction I have suggested is the correct one.
Broadly speaking, before an election machinery can be brought
D into operation, there are three requisites which require to be
attended to, namely, (1) there should be a set of laws and rules
making provisions with respect to all matters relating to, or in
connection with, elections, and it should be decided as to how
these laws and rules are to be made; (2) there should be an
executive charged with the duty of securing the due conduct of
E elections; and (3) there should be a judicial tribunal to deal with
disputes arising out of or in connection with elections. Articles
327 and 328 deal with the first of these requisites, Article 324
with the second and Article 329 with the third requisite. The other
two articles in Part XV, viz, Articles 325 and 326 deal with two
F matters of principle to which the Constitution-framers have
attached much importance. They are: (1) prohibition against
discrimination in the preparation of, or eligibility for inclusion in,
the electoral rolls, on grounds of religion, race, caste, sex or any
of them; and (2) adult suffrage. Part XV of the Constitution is
really a code in itself providing the entire ground-work for enacting
G appropriate laws and setting up suitable machinery for the conduct
of elections.”
(at pages 228-230)
36. The Court then summed up its conclusions thus:
“It may be pointed out that Article 329(b) must be read as
H complementary to clause (a) of that article. Clause (a) bars the
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 813
[R. F. NARIMAN, J]

jurisdiction of the courts with regard to such law as may be made A
under Articles 327 and 328 relating to the delimitation of
constituencies or the allotment of seats to such constituencies. It
was conceded before us that Article 329(b) ousts the jurisdiction
of the courts with regard to matters arising between the
commencement of the polling and the final selection. The question
B
which has to be asked is what conceivable reason the legislature
could have had to leave only matters connected with nominations
subject to the jurisdiction of the High Court under Article 226 of
the Constitution. If Part XV of the Constitution is a code by itself
i.e., it creates rights and provides for their enforcement by a Special
Tribunal to the exclusion of all courts including the High Court, C
there can be no reason for assuming that the Constitution left one
small part of the election process to be made the subject-matter
of contest before the High Courts and thereby upset the time-
schedule of the elections. The more reasonable view seems to be
that Article 329 covers all “electoral matters”.
D
The conclusions which I have arrived at may be summed up briefly
as follows:
(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it has
always been recognized to be a matter of first importance that E
elections should be concluded as early as possible according
to time schedule and all controversial matters and all disputes
arising out of elections should be postponed till after the elections
are over, so that the election proceedings may not be unduly
retarded or protracted.
F
(2) In conformity with this principle, the scheme the election
law in this country as well as in England is that no significance
should be attached to anything which does not affect the
‘election’; and if any irregularities are committed while it is in
progress and they belong to the category or class which, under
the law by which elections are governed, would have the effect G
of vitiating the ‘election’ and enable the person affected to call
it in question, they should be brought up before a Special Tribunal
by means of an election petition and not be made the subject
of a dispute before any court while the election is in progress.”
(at pages 233, 234) H
814 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 37. Leaving open what the powers of this court and the High
Courts under Articles 226, 227 and 136 are after an Election Tribunal
decides a dispute before it, this Court held:
“It should be mentioned here that the question as to what the
powers of the High Court under Articles 226 and 227 and of this
B court under Article 136 of the Constitution may be, is one that will
have to be decided on a proper occasion.”
(at page 237)
38. What was left open in Ponnuswami’s case as to the powers
of this Court under Article 136 after an election tribunal had decided an
C election petition before it was decided by this Court in Durga Shankar
Mehta v. Thakur Raghuraj Singh, (supra). This judgment described
the reach of the non-obstante clause contained in Article 329(b) as
follows:
“As has been said already, the non obstante clause in Article 329
D prohibits challenge to an election either to Parliament or any State
Legislature, except in the manner laid down in clause (2) of the
article. But there is no prohibition of the exercise of its powers by
the Supreme Court in proper cases under Article 136 of the
Constitution against the decision or determination of an Election
Tribunal which like all other Judicial Tribunals comes within the
E
purview of the article. It is certainly desirable that the decisions
on matters of disputed election should, as soon as possible, become
final and conclusive so that the constitution of the legislature may
be distinctly and speedily known. But the powers under Article
136 are exercisable only under exceptional circumstances. The
F article does not create any general right of appeal from decisions
of all tribunals. As regards the decision of this court in Ponnuswami
v. Returning Officer, Namakkal Constituency [1952 SCR 218] to
which reference has been made by the learned counsel, we would
only desire to point out that all that this case decided was that the
High Court had no jurisdiction, under Article 226 of the
G
Constitution, to interfere by a writ of certiorari, with the order of
a Returning Officer who was alleged to have wrongly rejected
the nomination paper of a particular candidate. It was held that
the word “election” in Article 329(b) of the Constitution had been
used in the wide sense to connote the entire process, culminating
H in a candidate’s being declared elected and that the scheme of
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 815
[R. F. NARIMAN, J]

Part XV of the Constitution was that all matters which had the A
effect of vitiating election should be brought up only after the
election was over and by way of an election petition. The particular
point, which arises for consideration here, was not decided in that
case and was expressly left open.”
(at pages 274,275) B
39. Likewise, a discussion on the reach of Article 329(b) and
Article 226 of the Constitution after an election petition has been decided
by an election tribunal was then discussed in Hari Vishnu Kamath v.
Syed Ahmad Ishaque, (supra):
“Now, the question is whether a writ is a proceeding in which an C
election can properly be said to be called in question within the
meaning of Article 329(b). On a plain reading of the article, what
is prohibited therein is the initiation of proceedings for setting aside
an election otherwise than by an election petition presented to
such authority and in such manner as provided therein. A suit for D
setting aside an election would be barred under this provision. In
N.P. Ponnuswami v. Returning Officer, Namakkal Constituency
[1952 SCR 218] it was held by this court that the word “election”
in Article 329(b) was used in a comprehensive sense as including
the entire process of election commencing with the issue of a
notification and terminating with the declaration of election of a E
candidate, and that an application under Article 226 challenging
the validity of any of the acts forming part of that process would
be barred. These are instances of original proceedings calling in
question an election, and would be within the prohibition enacted
in Article 329(b). But when once proceedings have been instituted F
in accordance with Article 329(b) by presentation of an election
petition, the requirements of that article are fully satisfied.
Thereafter when the election petition is in due course heard by a
tribunal and decided, whether its decision is open to attack, and if
so, where and to what extent, must be determined by the general
law applicable to decisions of tribunals. There being no dispute G
that they are subject to the supervisory jurisdiction of the High
Courts under Article 226, a writ of certiorari under that article will
be competent against decisions of the Election Tribunals also.
The view that Article 329(b) is limited in its operation to initiation
of proceedings for setting aside an election and not to the further H
816 SUPREME COURT REPORTS [2021] 2 S.C.R.

A stages following on the decision of the Tribunal is considerably
reinforced, when the question is considered with reference to a
candidate, whose election has been set aside by the Tribunal. If
he applies under Article 226 for a writ to set aside the order of the
Tribunal, he cannot in any sense be said to call in question the
election; on the other hand, he seeks to maintain it. His application
B
could not, therefore, be barred by Article 329(b). And if the
contention of the first respondent is well-founded, the result will
be that proceedings under Article 226 will be competent in one
event and not in another and at the instance of one party and not
the other. Learned counsel for the first respondent was unable to
C give any reason why this differentiation should be made. We cannot
accept a construction which leads to results so anomalous.”
(at pages 1111,1112)
40. In Narayan Bhaskar Khare (Dr) v. Election Commission
of India (supra), a 7-Judge Bench dealt with elections to the President
D and the Vice President of India contained under Article 71. The Court
held:
“As already indicated, Article 71(1) confers jurisdiction and power
on this court to inquire into and decide “all doubts and disputes
arising out of or in connection with the election of a President or
E Vice-President”. The question is: Is there in this Article or in any
other part of the Constitution or anywhere else any indication as
to the time when such inquiry is to be held? In the first place,
Article 71 postulates an “election of the President or Vice-
President” and provides for inquiry into doubts and disputes arising
F out of or in connection with such an election. What is the meaning
to be given to the word “election” as used in this Article? If we
give to the word “election” occurring in Article 71(1) the same
wide meaning as comprising the entire election process culminating
in a candidate being declared elected, then clearly the inquiry is to
be made after such completed election i.e. after a candidate is
G declared to be elected as President or Vice-President as the case
may be. We see no reason why this accepted meaning should not
be given to the critical word. In the second place, under clause 3
of Article 71, subject to the provisions of this Constitution,
Parliament may by law regulate any matter “relating to or
H connected with the election” of a President or Vice-President.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 817
[R. F. NARIMAN, J]

The words here also are similar to those used in Article 327 and A
are equally wide enough to cover matters relating to or connected
with any stage of the entire election process. In exercise of powers
conferred on it by Article 71(3), Parliament has enacted the
Presidential and Vice-Presidential Election Act, 1952 (31 of 1952)
to regulate certain matters relating to or connected with elections
B
to the office of President and Vice-President of India. A glance
through the provisions of this Act will indicate that in the view of
Parliament the time for the exercise of jurisdiction by this court to
inquire into and decide doubts and disputes arising out of or in
connection with the Presidential election is after the entire election
process is completed.” C
(at pages 1088,1089)
“The above stated interpretation appears to us to be in consonance
with the other provisions of the Constitution and with good sense.
If doubt or dispute arising out of or in connection with the election
of a President or Vice-President can be brought before this court D
before the whole election process is concluded then conceivably
the entire election may be held up till after the expiry of the five
years’ term which will involve a non-compliance with the
mandatory provisions of Article 62. The well recognised principle
of election law, Indian and English, is that elections should not be E
held up and that the person aggrieved should not be permitted to
ventilate his individual interest in derogation of the general interest
of the people, which requires that elections should be gone through
according to the time schedule. It is, therefore, in consonance
both with the provisions of Article 62 and with good sense to hold
that the word “election” used in Article 71 means the entire process F
of election. “
(at page 1090)
41. The judgment of Krishna Iyer,J. contained in Mohinder Singh
Gill v. Chief Election Commr. (supra), is of great importance and
delineates not only the parameters of Article 329(b) qua writ petitions G
filed under Articles 226 and 227 of the Constitution of India but also
speaks of the powers of the Election Commission in supervising and
conducting the entire election process. This Court made a distinction
between challenges under Article 226 while the election process is on
which interfere with the progress of the election as against approaching H
818 SUPREME COURT REPORTS [2021] 2 S.C.R.

A a writ court to accelerate the completion of the election and to act in
furtherance of the election. The Court put it thus:
“28. What emerges from this perspicacious reasoning, if we may
say so with great respect, is that any decision sought and rendered
will not amount to “calling in question” an election if it subserves
B the progress of the election and facilitates the completion of the
election. We should not slur over the quite essential observation
“Anything done towards the completion of the election proceeding
can by no stretch of reasoning be described as questioning the
election.” Likewise, it is fallacious to treat “a single step taken in
furtherance of an election” as equivalent to election.
C
29. Thus, there are two types of decisions, two types of challenges.
The first relates to proceedings which interfere with the progress
of the election. The second accelerates the completion of the
election and acts in furtherance of an election. So, the short
question before us, in the light of the illumination derived from
D Ponnuswami is as to whether the order for re-poll of the Chief
Election Commissioner is “anything done towards the completion
of the election proceeding” and whether the proceedings before
the High Court fecilitated the election process or halted its progress.
The question immediately arises as to whether the relief sought in
E the writ petition by the present appellant amounted to calling in
question the election. This, in turn, revolves round the point as to
whether the cancellation of the poll and the reordering of fresh
poll is “part of election” and challenging it is “calling it in question”.
30. The plenary bar of Article 329(b) rests on two principles: (1)
F The peremptory urgency of prompt engineering of the whole
election process without intermediate interruptions by way of legal
proceedings challenging the steps and stages in between the
commencement and the conclusion. (2) The provision of a special
jurisdiction which can be invoked by an aggrieved party at the
end of the election excludes other form, the right and remedy
G being creatures of statutes and controlled by the Constitution.
Durga Shankar Mehta has affirmed this position and supplemented
it by holding that, once the Election Tribunal has decided, the
prohibition is extinguished and the Supreme Court’s overall power
to interfere under Article 136 springs into action. In Hari Vishnu
H this court upheld the rule in Ponnuswami excluding any proceeding,
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 819
[R. F. NARIMAN, J]

including one under Article 226, during the on-going process of A
election, understood in the comprehensive sense of notification
down to declaration. Beyond the declaration comes the election
petition, but beyond the decision of the Tribunal the ban of Article
329(b) does not bind.
xxx xxx xxx B
34.…But what is banned is not anything whatsoever done or
directed by the Commissioner but everything he does or directs in
furtherance of the election, not contrarywise. For example, after
the President notifies the nation on the holding of elections under
Section 15 and the Commissioner publishes the calendar for the C
poll under Section 30, if the latter orders Returning Officers to
accept only one nomination or only those which come from one
party as distinguished from other parties or independents, is that
order immune from immediate attack. We think not. Because the
Commissioner is preventing an election, not promoting it and the
court’s review of that order will facilitate the flow, not stop the D
stream. Election, wide or narrow be its connotation, means choice
from a possible plurality, monolithic politics not being our genius
or reality, and if that concept is crippled by the Commissioner’s
act, he holds no election at all.”
42. Dealing with the power of the Election Commission under E
Article 324 of the Constitution and judicial review of such power, in an
important passage Krishna Iyer,J. stated:
“38. Article 324, which we have set out earlier, is a plenary
provision vesting the whole responsibility for national and State
elections and, therefore, the necessary powers to discharge that F
function. It is true that Article 324 has to be read in the light of the
constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao
is right to the extent he insists that if competent legislation is enacted
as visualised in Article 327 the Commission cannot shake itself
free from the enacted prescriptions. After all, as Mathew, J. has G
observed in Indira Gandhi:
“In the opinion of some of the Judges constituting the majority
in Bharati’s case [Kesavananda Bharati v. State of Kerala,
(1973) 4 SCC 225.] rule of law is a basic structure of the
Constitution apart from democracy.
H
820 SUPREME COURT REPORTS [2021] 2 S.C.R.

A The rule of law postulates the pervasiveness of the spirit of
law throughout the whole range of Government in the sense of
excluding arbitrary official action in any sphere.”
And the supremacy of valid law over the Commission argues
itself. No one is an imperium in imperio in our constitutional
B order. It is reasonable to hold that the Commissioner cannot defy
the law armed by Article 324. Likewise, his functions are subject
to the norms of fairness and he cannot act arbitrarily. Unchecked
power is alien to our system.
39. Even so, situations may arise which enacted law has not
C provided for. Legislators are not prophets but pragmatists. So it is
that the Constitution has made comprehensive provision in Article
324 to take care of surprise situations. That power itself has to be
exercised, not mindlessly nor mala fide, not arbitrarily nor with
partiality but in keeping with the guidelines of the rule of law and
not stultifying the Presidential notification nor existing legislation.
D More is not necessary to specify; less is insufficient to leave unsaid.
Article 324, in our view, operates in areas left unoccupied by
legislation and the words “superintendence, direction and control,
as well as ‘conduct of all elections’, are the broadest terms”.
Myriad maybes, too mystic to be precisely presaged, may call for
E prompt action to reach the goal of free and fair election. It has
been argued that this will create a constitutional despot beyond
the pale of accountability; a Frankenstein’s monster who may
manipulate the system into elected despotism — instances of such
phenomena are the tears of history. To that the retort may be that
the judicial branch, at the appropriate stage, with the potency of
F its benignant power and within the leading strings of legal guidelines,
can call the bluff, quash the action and bring order into the
process.”
43. Finally, the court summarized its conclusions as follows:

G “92. Diffusion, even more elaborate discussion, tends to blur the
precision of the conclusion in a judgment and so it is meet that we
synopsize the formulations. Of course, the condensed statement we make
is for convenience, not for exclusion of the relevance or attenuation of
the binding impact of the detailed argumentation. For this limited purpose,
we set down our holdings:
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 821
[R. F. NARIMAN, J]

“(1)(a) Article 329(b) is a blanket ban on litigative challenges to A
electoral steps taken by the Election Commission and its officers
for carrying forward the process of election to its culmination in
the formal declaration of the result.
(b) Election, in this context, has a very wide connotation
commencing from the Presidential notification calling upon the B
electorate to elect and culminating in the final declaration of the
returned candidate.
(2)(a) The Constitution contemplates a free and fair election and
vests comprehensive responsibilities of superintendence, direction
and control of the conduct of elections in the Election Commission. C
This responsibility may cover powers, duties and functions of many
sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the
exercise thereof. Firstly, when Parliament or any State Legislature
has made valid law relating to or in connection with elections, the D
Commission, shall act in conformity with, not in violation of, such
provisions but where such law is silent Article 324 is a reservoir
of power to act for the avowed purpose of, not divorced from,
pushing forward a free and fair election with expedition. Secondly,
the Commission shall be responsible to the rule of law, act bona
fide and be amenable to the norms of natural justice insofar as E
conformance to such canons can reasonably and realistically be
required of it as fairplay-in-action in a most important area of the
constitutional order viz. elections. Fairness does import an
obligation to see that no wrongdoer candidate benefits by his own
wrong. To put the matter beyond doubt, natural justice enlivens F
and applies to the specific case of order for total re-poll, although
not in full panoply but in flexible practicability. Whether it has
been complied with is left open for the Tribunal’s adjudication.
(3) The conspectus of provisions bearing on the subject of elections
clearly expresses the rule that there is a remedy for every wrong
G
done during the election in progress although it is postponed to the
post-election stage and procedure as predicated in Article 329(b)
and the 1951 Act. The Election Tribunal has, under the various
provisions of the Act, large enough powers to give relief to an
injured candidate if he makes out a case and such processual
amplitude of power extends to directions to the Election H
822 SUPREME COURT REPORTS [2021] 2 S.C.R.

A Commission or other appropriate agency to hold a poll, to bring up
the ballots or do other thing necessary for fulfilment of the
jurisdiction to undo illegality and injustice and do complete justice
within the parameters set by the existing law.”
44. In Boddula Krishnaiah and Another v. State Election
B Commissioner, A.P. & Ors., (1996) 3 SCC 416, a Gram Panchayat
election notification had been issued, subsequent to which the High Court,
by interim orders directed 94 persons to participate in the election. By
subsequent interim orders, the claims of various respondents were to be
ascertained, and ultimately, the Revenue Divisional Officer found 20
persons to be eligible to be included in the voters list, as a result of which
C the High Court directed that these persons should be allowed to participate
in the election. This Court held:
“11. Thus, it would be clear that once an election process has
been set in motion, though the High Court may entertain or may
have already entertained a writ petition, it would not be justified in
D interfering with the election process giving direction to the election
officer to stall the proceedings or to conduct the election process
afresh, in particular when election has already been held in which
the voters were allegedly prevented from exercising their franchise.
As seen, that dispute is covered by an election dispute and remedy
E is thus available at law for redressal.
12. Under these circumstances, we hold that the order passed by
the High Court is not correct in law in giving direction not to declare
the result of the election or to conduct fresh poll for 20 persons,
though the writ petition is maintainable. The High Court, pending
writ petition, would not be justified in issuing direction to stall the
F election process. It is made clear that though we have held that
the respondents are not entitled to the relief by interim order, this
order does not preclude any candidate including defeated candidate
from canvassing the correctness of the election. They are free,
as held earlier, to seek remedy by way of an election petition as
G provided in the Act and the Rules.”
45. In Election Commission of India v. Ashok Kumar (supra),
a 3-Judge Bench of this Court reviewed the entire case law relating to
Article 329(b) and Article 226 holding:
“28. Election disputes are not just private civil disputes between
H two parties. Though there is an individual or a few individuals
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 823
[R. F. NARIMAN, J]

arrayed as parties before the court but the stakes of the A
constituency as a whole are on trial. Whichever way the lis
terminates it affects the fate of the constituency and the citizens
generally. A conscientious approach with overriding consideration
for welfare of the constituency and strengthening the democracy
is called for. Neither turning a blind eye to the controversies which
B
have arisen nor assuming a role of overenthusiastic activist would
do. The two extremes have to be avoided in dealing with election
disputes.”
A useful summary of conclusions based on the case law was then
set out by the court as follows:
C
“31. The founding fathers of the Constitution have consciously
employed use of the words “no election shall be called in question”
in the body of Section 329(b) and these words provide the
determinative test for attracting applicability of Article 329(b). If
the petition presented to the court “calls in question an election”
the bar of Article 329(b) is attracted. Else it is not. D

32. For convenience’s sake we would now generally sum up our
conclusions by partly restating what the two Constitution Benches
have already said and then adding by clarifying what follows
therefrom in view of the analysis made by us hereinabove:
E
(1) If an election, (the term election being widely interpreted
so as to include all steps and entire proceedings commencing
from the date of notification of election till the date of
declaration of result) is to be called in question and which
questioning may have the effect of interrupting, obstructing
or protracting the election proceedings in any manner, the F
invoking of judicial remedy has to be postponed till after the
completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to “calling
in question an election” if it subserves the progress of the
election and facilitates the completion of the election. G
Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the
election.
(3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well- H
824 SUPREME COURT REPORTS [2021] 2 S.C.R.

A settled parameters which enable judicial review of decisions
of statutory bodies such as on a case of mala fide or
arbitrary exercise of power being made out or the statutory
body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress
B of the election proceedings, judicial intervention is available
if assistance of the court has been sought for merely to
correct or smoothen the progress of the election
proceedings, to remove the obstacles therein, or to preserve
a vital piece of evidence if the same would be lost or
destroyed or rendered irretrievable by the time the results
C are declared and stage is set for invoking the jurisdiction of
the court.
(5) The court must be very circumspect and act with caution
while entertaining any election dispute though not hit by the
bar of Article 329(b) but brought to it during the pendency
D of election proceedings. The court must guard against any
attempt at retarding, interrupting, protracting or stalling of
the election proceedings. Care has to be taken to see that
there is no attempt to utilise the court’s indulgence by filing
a petition outwardly innocuous but essentially a subterfuge
or pretext for achieving an ulterior or hidden end. Needless
E to say that in the very nature of the things the court would
act with reluctance and shall not act, except on a clear and
strong case for its intervention having been made out by
raising the pleas with particulars and precision and
supporting the same by necessary material.”
F 46. In Kurapati Maria Das v. Dr. Ambedkar Seva Samajan,
(2009) 7 SCC 387, the validity of a caste certificate came up for
determination in a writ petition that was filed which challenged municipal
elections made to a reserved constituency. In this context, this court
held:
G “18. Regarding the bar of jurisdiction under Article 243-ZG(b),
learned counsel Shri Gagan Gupta submitted that the decision
relied upon by the High Court as K. Venkatachalam v. A.
Swamickan [(1999) 4 SCC 526] was applicable and, therefore, it
could not be said that there was a bar to the entertainment of the
writ petition under Article 226. Learned counsel supported the
H factual findings recorded by the High Court to the effect that the
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 825
[R. F. NARIMAN, J]

appellant was a Christian and, therefore, could not claim the status A
of a person belonging to the Scheduled Caste, more particularly,
caste “Mala”.
19. In the first place, it would be better to consider as to whether
the bar under Article 243-ZG(b) is an absolute bar. The article
reads thus: B
“243-ZG. (b) no election to any Municipality shall be called in
question except by an election petition presented to such
authority and in such manner as is provided for by or under
any law made by the legislature of a State.”
At least from the language of clause (b), it is clear that the bar is C
absolute. Normally, where such a bar is expressed in a negative
language as is the case here, it has to be held that the tone of
clause (b) is mandatory and the bar created therein is absolute.
20. This Court in its recent decisions has held the bar to be absolute.
First such decision is Jaspal Singh Arora v. State of M.P. [(1998) D
9 SCC 594]. In this case the election of the petitioner as the
President of the Municipal Council was challenged by a writ
petition under Article 226, which was allowed setting aside the
election of the petitioner. In para 3 of this judgment, the Court
observed:
E
“3. … it is clear that the election could not be called in question
except by an election petition as provided under that Act. The
bar to interference by courts in electoral matters contained in
Article 243-ZG of the Constitution was apparently overlooked
by the High Court in allowing the writ petition. Apart from the
F
bar under Article 243-ZG, on settled principles interference
under Article 226 of the Constitution for the purpose of setting
aside election to a municipality was not called for because of
the statutory provision for election petition….”
21. The second such decision is Gurdeep Singh
Dhillon v. Satpal [(2006) 10 SCC 616]. In that decision, after G
quoting Article 243-ZG(b) the Court observed that the shortcut of
filing the writ petition and invoking constitutional jurisdiction of
the High Court under Articles 226/227 was not permissible and
the only remedy available to challenge the election was by raising
the election dispute under the local statute. H
826 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 22. There is no dispute that Rule 1 of the Andhra Pradesh
Municipalities (Decision on Election Disputes) Rules, 1967,
specifically provides for challenging the election of Councillor or
Chairman. It was tried to be feebly argued that this was a petition
for quo warranto and not only for challenging the election of the
appellant herein. This contention is clearly incorrect. When we
B
see the writ petition filed before the High Court, it clearly suggests
that what is challenged is the election. In fact the Prayer clauses
(b) and (c) are very clear to suggest that it is the election of the
appellant which is in challenge.”
47. In W.B. State Election Commission v. Communist Party of
C India (Marxist) (supra), the West Bengal State Commission issued
certain directions extending the last date for submitting nominations by
one day, after which the said order was recalled on the next day. A
learned single Judge of the High Court delivered a judgment in which
the order cancelling the extension was quashed and the commission
D was directed to issue a fresh notification extending the date for filing
nomination. In obedience to this order, the SEC issued a notification
extending the date for filing of nominations on 21.04.2018. Writ petitions
were then filed which were dismissed by a learned Single Judge, who
declined to interfere with the election process. Ultimately, after fresh
writ petitions were moved before a single Judge of the Calcutta High
E Court, the single Judge declined to give any further directions, more
particularly, that the SEC be made to accept nominations already filed in
electronic forms. The Division Bench, while disposing of the appeal,
directed the SEC to accept nominations in electronic forms by those
candidates who had submitted them on or before 3.00 p.m. on 23.04.2018.
F After setting out the relevant provisions of the Panchayat Elections Act,
this Court held:
“28. The Panchayat Elections Act is a complete code in regard
to the conduct of the poll and for the resolution of disputes
concerning the validity of the election. Article 243-K entrusts the
G superintendence, direction and control over the conduct of all
elections to the panchayats in the State Election Commission.
Clause (b) of Article 243-O stipulates thus:
“243-O. Bar to interference by courts in electoral matters.—
Notwithstanding anything in this Constitution—
H ***
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 827
[R. F. NARIMAN, J]

(b) no election to any Panchayat shall be called in question A
except by an election petition presented to such authority and
in such manner as is provided for by or under any law made by
the legislature of a State.”
29. There is merit in the submission that the discipline which is
mandated by the provisions of the Constitution and enforced by B
the enabling State law on the subject must be maintained. Any
dispute in regard to the validity of the election has to be espoused
by adopting a remedy which is known to law, namely, through an
election petition. It is at the trial of an election petition that factual
disputes can be resolved on the basis of evidence. This principle
has been consistently adhered to in decisions of this court. In C
Boddula Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC
416, a three-Judge Bench adverted to the decisions of the
Constitution Bench in N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency, 1952 SCR 218 in Lakshmi Charan
Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689. After D
referring to Ponnuswami, it was observed:
“8. In N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency a Constitution Bench of this court had held that
having regard to the important functions which the legislatures
have to perform in democratic countries, it has always been
recognised to be a matter of first importance that elections E
should be concluded as early as possible according to time-
schedule and all controversial matters and all disputes arising
out of elections should be postponed till after the elections are
over so that the election proceedings may not be unduly
retarded or protracted. In conformity with the principle, the F
scheme of the election law is that no significance should be
attached to anything which does not affect the “election”; and
if any irregularities are committed while it is in progress and
they belong to the category or class which under the law by
which elections are governed, would have the effect of vitiating
the “election”; and enable the person affected to call it in G
question, they should be brought up before a Special Tribunal
by means of an election petition and not be made the subject
of a dispute before any court while the election is in progress.”
The binding principle must be followed.
xxx xxx xxx H
828 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 33. For these reasons, we are of the view that challenges in regard
to the validity of the elections to the uncontested seats in the
panchayats, Panchayat Samitis and Zila Parishads must also be
pursued in election petitions under Section 79(1) of the Panchayat
Elections Act. We leave it open to any person aggrieved to raise
a dispute in the form of an election petition in accordance with the
B
provisions contained in the Panchayat Elections Act. In exercise
of the power conferred by Article 142, we direct that the period
of 30 days for filing election petitions in respect of the uncontested
seats shall commence from the date of the publication of the results
in the Official Gazette.”
C 48. A recent judgment of 3 learned Judges in Laxmibai v.
Collector, (supra), comes nearer home when it deals with municipal
elections, and holds as follows:
“42. This court again examined the question in respect of raising
a dispute relating to an election of a local body before the High
D Court by way of a writ petition under Article 226 of the Constitution
of India in a judgment reported as Harnek Singh v. Charanjit Singh
[Harnek Singh v. Charanjit Singh, (2005) 8 SCC 383]. It was held
as under:
“15. Prayers (b) and (c) aforementioned, evidently, could not
E have been granted [Charanjit Singh v. State of Punjab, 2003
SCC OnLine P&H 1226] in favour of the petitioner by the
High Court in exercise of its jurisdiction under Article 226 of
the Constitution of India. It is true that the High Court exercises
a plenary jurisdiction under Article 226 of the Constitution of
F India. Such jurisdiction being discretionary in nature may not
be exercised inter alia keeping in view the fact that an efficacious
alternative remedy is available therefor. (See Sanjana M. Wig
v. Hindustan Petroleum Corpn. Ltd. (2005) 8 SCC 242 )
16. Article 243-O of the Constitution of India mandates that all
G election disputes must be determined only by way of an election
petition. This by itself may not per se bar judicial review which
is the basic structure of the Constitution, but ordinarily such
jurisdiction would not be exercised. There may be some cases
where a writ petition would be entertained but in this case we
are not concerned with the said question.
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 829
[R. F. NARIMAN, J]

17. In C. Subrahmanyam [C. Subrahmanyam v. K. A
Ramanjaneyullu, (1998) 8 SCC 703], a three-Judge Bench of
this court observed that a writ petition should not be entertained
when the main question which fell for decision before the High
Court was non-compliance with the provisions of the Act which
was one of the grounds for an election petition in terms of
B
Rule 12 framed under the Act.”
43. Section 10-A of the 1959 Act and Section 9-A of the 1961
Act read with Articles 243-K and 243-O, are pari materia with
Article 324 of the Constitution of India. In view of the judgments
referred, we find that the remedy of an aggrieved person accepting
or rejecting nomination of a candidate is by way of an election C
petition in view of the bar created under Section 15-A of the 1959
Act. The said Act is a complete code providing machinery for
redressal to the grievances pertaining to election as contained in
Section 15 of the 1959 Act. The High Court though exercises
extraordinary jurisdiction under Article 226 of the Constitution of D
India but such jurisdiction is discretionary in nature and may not
be exercised in view of the fact that an efficacious alternative
remedy is available and more so exercise restraint in terms of
Article 243-O of the Constitution of India. Once alternate machinery
is provided by the statute, the recourse to writ jurisdiction is not
an appropriate remedy. It is a prudent discretion to be exercised E
by the High Court not to interfere in the election matters, especially
after declaration of the results of the elections but relegate the
parties to the remedy contemplated by the statute. In view of the
above, the writ petition should not have been entertained by the
High Court. However, the order of the High Court that the appellant F
has not furnished the election expenses incurred on the date of
election does not warrant any interference.”
Powers of the State Election Commission under Article
243K r/w 243ZA
49. In Election Commission of India v. Shivaji, (supra), this G
court after referring to Ponnuswami’s case then referred to the powers
of the Election Commission under Article 324 as follows:
“6. ………... If there was any such error committed in the course
of the election process the Election Commission had the authority
to set it right by virtue of power vested in it under Article 324 of H
830 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the Constitution as decided in Mohinder Singh Gill v. Chief Election
Commissioner [(1978) 1 SCC 405] and to see that the election
process was completed in a fair manner.”
50. Similarly, in Digvijay Mote v. Union of India, (1993) 4 SCC
175, this court referred to the powers of the Election Commission under
B Article 324 of the Constitution as follows:
“8. The conduct of election is in the hands of the Election
Commission which has the power of superintendence, direction
and control of elections vested in it as per Article 324 of the
Constitution. Consequently, if the Election Commission is of the
C opinion that having regard to the disturbed conditions of a State or
a part thereof, free and fair elections could not be held it may
postpone the same. Accordingly, on account of unsettled conditions,
the elections in the States of Assam & Jammu and Kashmir could
be postponed.
9. However, it has to be stated this power is not unbridled. Judicial
D
review will still be permissible, over the statutory body exercising
its functions affecting public law rights.
xxx xxx xxx
14. The resultant position is that it cannot be stated that the exercise
of power under Article 324 is not altogether unreviewable. The
E
review will depend upon the facts and circumstances of each
case.”
51. In Kishansing Tomar v. Municipal Corpn., Ahmedabad
(supra), a Constitution Bench of this Court clearly set out the powers of
the State Election Commissions under the Constitution as follows:
F
“22. In our opinion, the entire provision in the Constitution was
inserted to see that there should not be any delay in the constitution
of the new municipality every five years and in order to avoid the
mischief of delaying the process of election and allowing the
nominated bodies to continue, the provisions have been suitably
G added to the Constitution. In this direction, it is necessary for all
the State Governments to recognise the significance of the State
Election Commission, which is a constitutional body and it shall
abide by the directions of the Commission in the same manner in
which it follows the directions of the Election Commission of India
H during the elections for Parliament and the State Legislatures. In
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 831
[R. F. NARIMAN, J]

fact, in the domain of elections to the panchayats and the municipal A
bodies under Part IX and Part IX-A for the conduct of the elections
to these bodies they enjoy the same status as the Election
Commission of India.
23. In terms of Article 243-K and Article 243-ZA(1) the same
powers are vested in the State Election Commission as the Election B
Commission of India under Article 324. The words in the former
provisions are in pari materia with the latter provision.
24. The words, “superintendence, direction and control” as well
as “conduct of elections” have been held in the “broadest of terms”
by this court in several decisions including Special Reference No. C
1 of 2002, In re [Special Reference No. 1 of 2002, In re, (2002) 8
SCC 237] and Mohinder Singh Gill case [Mohinder Singh Gill v.
Chief Election Commr., (1978) 1 SCC 405] and the question is
whether this is equally relevant in respect of the powers of the
State Election Commission as well.
D
25. From a reading of the said provisions it is clear that the powers
of the State Election Commission in respect of conduct of elections
is no less than that of the Election Commission of India in their
respective domains. These powers are, of course, subject to the
law made by Parliament or by the State Legislatures, provided
the same do not encroach upon the plenary powers of the said E
Election Commissions.
26. The State Election Commissions are to function independent
of the State Governments concerned in the matter of their powers
of superintendence, direction and control of all elections and
preparation of electoral rolls for, and the conduct of, all elections F
to the panchayats and municipalities.
27. Article 243-K(3) also recognises the independent status of
the State Election Commission. It states that upon a request made
in that behalf the Governor shall make available to the State Election
Commission “such staff as may be necessary for the discharge
G
of the functions conferred on the State Election Commission by
clause (1)”. It is accordingly to be noted that in the matter of the
conduct of elections, the Government concerned shall have to
render full assistance and cooperation to the State Election
Commission and respect the latter’s assessment of the needs in
order to ensure that free and fair elections are conducted. H
832 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 28. Also, for the independent and effective functioning of the
State Election Commission, where it feels that it is not receiving
the cooperation of the State Government concerned in discharging
its constitutional obligation of holding the elections to the panchayats
or municipalities within the time mandated in the Constitution, it
will be open to the State Election Commission to approach the
B
High Courts, in the first instance, and thereafter the Supreme
Court for a writ of mandamus or such other appropriate writ
directing the State Government concerned to provide all necessary
cooperation and assistance to the State Election Commission to
enable the latter to fulfil the constitutional mandate.”
C 52. Given the fact that the scheme contained in Part XV is bodily
lifted into the provisions contained in Part IX-A, the powers exercised
by the SEC under Article 243ZA(1) are the same as those vested in the
Election Commission of India under Article 324 of the Constitution of
India. As has been pointed out in Mohinder Singh Gill (supra) and the
D aforesaid decisions, the entire supervision and conduct of elections to
municipalities is vested in a constitutional authority that is the SEC which
is to supervise and conduct elections by giving orders and directions to
the State Government as well as authorities that are set up under State
statutes for the purpose of supervision and conduct of elections. The
power thus conferred by the Constitution is a power given to the SEC
E not only to carry out the constitutional mandate but also to fill in gaps
where there is no law or rule governing a particular situation during the
conduct of an election. The 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
F writ court under Articles 226 and 227 of the Constitution of India to
either enforce directions or orders issued by it or to ask for appropriate
orders from High Courts in that behalf.
Bar contained in Articles 243ZG(a) / 329(a).
53. So far as delimitation and allocation of seats is concerned, the
G bar contained in Article 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 Article 329(a) of the Constitution. In Lakshmi Charan
Sen v. A.K.M. Hassan Uzzaman (supra), Chandrachud,CJ. speaking
for the majority of a Constitution Bench of this court, held that the
H
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 833
[R. F. NARIMAN, J]

delimitation process and the making of electoral rolls is independent of A
the process of any particular election and thus held:
“27. …In Rampakavi Rayappa Belagali [(1970) 3 SCC 147], it
was held that the scheme of the Act of 1950 and the amplitude of
its provisions show that the entries made in an electoral roll of a
constituency can only be challenged in accordance with the B
machinery provided by the Act and not in any other manner or
before any other forum unless, some question of violation of the
provisions of the Constitution is involved. In Mohinder Singh Gill
[(1978) 1 SCC 405], Krishna Iyer, J., speaking for the Constitution
Bench, has considered at great length the scope and meaning of
Article 329(b) of the Constitution. Describing that article as the C
“Great Wall of China”, the learned Judge posed the question
whether it is so impregnable that it cannot be bypassed even by
Article 226. Observing that “every step from start to finish of the
total process constitutes ‘election’, not merely the conclusion or
culmination”, the judgment concludes thus: D
“The rainbow of operations, covered by the compendious
expression ‘election’, thus commences from the initial
notification and culminates in the declaration of the return of a
candidate.”
28. We have expressed the view that preparation and revision of E
electoral rolls is a continuous process, not connected with any
particular election. It may be difficult, consistently with that view,
to hold that preparation and revision of electoral rolls is a part of
the “election” within the meaning of Article 329(b). Perhaps, as
stated in Halsbury in the passage extracted in Ponnuswami [AIR
1952 SC 64], the facts of each individual case may have to be F
considered for determining the question whether any particular
stage can be said to be a part of the election process in that case.
In that event, it would be difficult to formulate a proposition which
will apply to all cases alike.”
54. This judgment was followed by another Constitution Bench in G
Indrajit Barua v. Election Commission of India (supra), the Court
holding:
“12. …We are not prepared to take the view that preparation of
electoral rolls is also a process of election. We find support for
our view from the observations of Chandrachud, C.J. in Lakshmi
H
834 SUPREME COURT REPORTS [2021] 2 S.C.R.

A Charan Sen case [AIR 1957 SC 304] that “it may be difficult,
consistently with that view, to hold that preparation and revision
of electoral roll, is a part of ‘election’ within the meaning of Article
329(b)”. In a suitable case challenge to the electoral roll for not
complying with the requirements of the law may be entertained
subject to the rule indicated in Ponnuswami case [(1985) 4 SCC
B
689]. But the election of a candidate is not open to challenge on
the score of the electoral roll being defective. Holding the election
to the Legislature and holding them according to law are both
matters of paramount importance. Such elections have to be held
also in accordance with a time bound programme contemplated
C in the Constitution and the Act. The proviso added in Section 22(2)
of the Act of 1950 is intended to extend cover to the electoral rolls
in eventualities which otherwise might have interfered with the
smooth working of the programme. These are the reasons for
which we came to the conclusion that the electoral roll of 1979
had not been vitiated and was not open to be attacked as invalid.”
D
55. In Meghraj Kothari v. Delimitation Commission (supra),
this court dealt with Sections 8, 9 and 10 of the Delimitation Commission
Act, 1962, and the bar contained in Article 329(a) as follows:
“In this case we are not, faced with that difficulty because
the Constitution itself provides under Article 329(a) that
E any law relating to the delimitation of constituencies etc.
made or purporting to be made under Article 327 shall not
be called in question in any court. Therefore an order under
Section 8 or 9 and published under Section 10(1) would not
be saved merely because of the use of the expression “shall
F not be called in question in any court”. But if by the
publication of the order in the Gazette of India it is to be
treated as law made under Article 327, Article 329 would
prevent any investigation by any court of law.”
(at page 408)
xxx xxx xxx
G
“In our view, therefore, the objection to the delimitation of
constituencies could only be entertained by the Commission
before the date specified. Once the orders made by the
Commission under Sections 8 and 9 were published in the
Gazette of India and in the Official Gazettes of the States
H concerned, these matters could no longer be reagitated in a
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 835
[R. F. NARIMAN, J]

court of law. There seems to be very good reason behind A
such a provision. If the orders made under Sections 8 and 9
were not to be treated as final, the effect would be that any
voter, if he so wished, could hold up an election indefinitely
by questioning the delimitation of the constituencies from
court to court. Section 10(2) of the Act clearly demonstrates
B
the intention of the Legislature that the orders under Sections
8 and 9 published under Section 10(1) were to be treated
as law which was not to be questioned in any court.
It is true that an order under Section 8 or 9 published under
Section 10(1) is not part of an Act of Parliament, but its
effect is to be the same.” C
(at pages 410,411)
xxx xxx xxx
“In the instant case the provision of Section 10(4) of the
Act puts orders under Sections 8 and 9 as published under
Section 10(1) in the same street as a law made by D
Parliament itself which, as we have already said, could only
be done under Article 327, and consequently the objection
that the notification was not to be treated as law cannot be
given effect to.”
(at page 415)
E
56. This judgment was followed in Assn. of Residents of Mhow
(ROM) v. Delimitation Commission of India, (2009) 5 SCC 404, which
dealt with Sections 9 and 10 of the Delimitation Act, 2002. The Court
held:
“35. This court in Pradhan [1995 Supp (2) SCC 305] was not
considering any similar issue as the one that has arisen for our F
consideration in the present case. This court did not take any
view that the proposals in respect of each constituency shall have
to be treated as an independent proposal and the Commission’s
power to determine delimitation of the constituencies is with
reference to each constituency. The objections and/or suggestions, G
as the case may be, are required to be taken into consideration
treating the proposals as for the whole of the State and delimitation
of the constituencies with reference to a State as a unit.
36. In Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR
400] a Constitution Bench of this court while interpreting Sections
H
836 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 8, 9 and 10 of the Delimitation Commission Act, 1962 which are
in pari materia with the provisions of the present Act, observed:
“19. In our view, therefore, the objection to the delimitation of
constituencies could only be entertained by the Commission
before the date specified. Once the orders made by the
B Commission under Sections 8 and 9 were published in the
Gazette of India and in the Official Gazettes of the States
concerned, these matters could no longer be reagitated in a
court of law. There seems to be very good reason behind such
a provision. If the orders made under Sections 8 and 9 were
not to be treated as final, the effect would be that any voter, if
C he so wished, could hold up an election indefinitely by
questioning the delimitation of the constituencies from court to
court. Section 10(2) of the Act clearly demonstrates the
intention of the legislature that the orders under Sections 8 and
9 published under Section 10(1) were to be treated as law
D which was not to be questioned in any court.
20. It is true that an order under Section 8 or 9 published under
Section 10(1) is not part of an Act of Parliament, but its effect
is to be the same.”
37. The Constitution Bench went to the extent of saying that:
E (Meghraj Kothari case [(1967) 1 SCR 400]
“18. An examination of Sections 8 and 9 of the Act shows that
the matters therein dealt with were not to be subject to the
scrutiny of any court of law. …
***
F 32. … the provision of Section 10(4) of the Act puts orders
under Sections 8 and 9 as published under Section 10(1) in the
same street as a law made by Parliament itself which, … could
only be done under Article 327, and consequently the objection
that the notification was not to be treated as law cannot be
given effect to.”
G
Conclusion
38. In the present case, the Commission finally determined the
delimitation of parliamentary constituencies in the State of Madhya
Pradesh after considering all the objections and suggestions
received by it before the specified date and got published its orders
H in the Gazette of India and in the Official Gazette of the State as
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 837
[R. F. NARIMAN, J]

is required under Section 10(1) of the Act. The orders so published A
puts them “in the same street as a law made by Parliament itself”.
Consequently that notification is to be treated as law and required
to be given effect to.”
57. In Rampakavi Rayappa Belagali v. B.D. Jatti, (1970) 3
SCC 147, the Court dealt with the scheme of the Representation of B
People Act, 1950 and its inter-relation with Article 329(a) as follows:
“7. …The entire scheme of the Act of 1950 and the
amplitude of its provisions show that the entries made in an
Electoral Roll of a constituency can only be challenged in
accordance with the machinery provided by it and not in
any other manner or before any other forum unless some C
question of violation of the provisions of the Constitution is
involved. …..
8. The other provisions relating to election are contained in
Part XV of the Constitution. Article 324 deals with the
superintendence, direction and control of elections which D
are vested in the Election Commission. Article 325 declares
that no person shall be ineligible for inclusion in an Electoral
Roll on account only of religion, race, caste, sex or any of
them. Article 326 says that the elections to the House of
People and the Legislative Assemblies of State shall be on E
the basis of adult franchise. Article 327 gives power to the
Parliament to make provisions with respect to elections to
Legislatures. Article 329 bars the interference of courts in
electoral matters. By virtue of that Article no election shall
be called in question except by an election petition. It is
abundantly clear that in the present case the question F
whether Respondent 1 was ordinarily resident in Jamkhandi
Constituency during the material period and was entitled to
be registered in the Electoral Roll could not be the subject-
matter of enquiry except in accordance with the provisions
of the Act of 1950. The grounds on which the election can
G
be declared to be void under the Act are set out in Section
100 of the Act. Clause (d) is “that the result of the election,
insofar as it concerns a returned candidate, has been
materially affected—(2) ………………
(i)……..….................... (ii) .................................. (iii)
…………….. (iv) by any non-compliance with the H
838 SUPREME COURT REPORTS [2021] 2 S.C.R.

A provisions of the Constitution or of this Act or of any rules
or orders made under this Act”. Nothing could be clearer
than the ambit of this provision. It does not entitle the court
in an election petition to set aside any election on the ground
of non-compliance with the provisions of the Act of 1950
or of any rules made thereunder with the exception of
B
Section 16.”
58. However, in State of U.P. v. Pradhan Sangh Kshettra Samiti,
1995 Supp (2) SCC 305, a division bench of this Court delineated the
scope of interference so far as delimitation of Panchayat areas is
concerned, as follows:
C “44. It is for the Government to decide in what manner the
panchayat areas and the constituencies in each panchayat
area will be delimited. It is not for the court to dictate the
manner in which the same would be done. So long as the
panchayat areas and the constituencies are delimited in
D conformity with the constitutional provisions or without
committing a breach thereof, the courts cannot interfere
with the same. xxx
45. What is more objectionable in the approach of the High
court is that although clause (a) of Article 243-O of the
E Constitution enacts a bar on the interference by the courts
in electoral matters including the questioning of the validity
of any law relating to the delimitation of the constituencies
or the allotment of seats to such constituencies made or
purported to be made under Article 243-K and the election
to any panchayat, the High Court has gone into the question
F of the validity of the delimitation of the constituencies and
also the allotment of seats to them. We may, in this
connection, refer to a decision of this court in Meghraj
Kothari v. Delimitation Commission [(1967) 1 SCR 400].
In that case, a notification of the Delimitation Commission
whereby a city which had been a general constituency was
G
notified as reserved for the Scheduled Castes. This was
challenged on the ground that the petitioner had a right to
be a candidate for Parliament from the said constituency
which had been taken away. This court held that the
impugned notification was a law relating to the delimitation
H of the constituencies or the allotment of seats to such
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 839
[R. F. NARIMAN, J]

constituencies made under Article 327 of the Constitution, A
and that an examination of Sections 8 and 9 of the
Delimitation Commission Act showed that the matters
therein dealt with were not subject to the scrutiny of any
court of law. There was a very good reason for such a
provision because if the orders made under Sections 8 and
B
9 were not to be treated as final, the result would be that
any voter, if he so wished, could hold up an election
indefinitely by questioning the delimitation of the
constituencies from court to court. Although an order under
Section 8 or Section 9 of the Delimitation Commission Act
and published under Section 10(1) of that Act is not part of C
an Act of Parliament, its effect is the same. Section 10(4)
of that Act puts such an order in the same position as a law
made by Parliament itself which could only be made by it
under Article 327. If we read Articles 243-C, 243-K and
243-O in place of Article 327 and Sections 2(kk), 11-F and
D
12-BB of the Act in place of Sections 8 and 9 of the
Delimitation Act, 1950, it will be obvious that neither the
delimitation of the panchayat area nor of the constituencies
in the said areas and the allotments of seats to the
constituencies could have been challenged nor the court
could have entertained such challenge except on the ground E
that before the delimitation, no objections were invited and
no hearing was given. Even this challenge could not have
been entertained after the notification for holding the
elections was issued. The High Court not only entertained
the challenge but has also gone into the merits of the alleged
F
grievances although the challenge was made after the
notification for the election was issued on 31-8-1994.”
59. The judgment in Anugrah Narain Singh v. State of U.P.,
(1996) 6 SCC 303 is instructive in that it deals with a local law namely
the U.P. Nagar Maha Palika Adhiniyam, 1959, in the context of challenges
made to orders under that Act. Meghraj’s case was distinguished by G
this court as follows:
“24. The validity of Sections 6-A, 31, 32 and 33 of the U.P. Act
dealing with delimitation of wards cannot be questioned in a court
of law because of the express bar imposed by Article 243-ZG of
the Constitution. Section 7 contains rules for allotment of seats to H
840 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the Scheduled Castes, the Scheduled Tribes and the Backward
Class people. The validity of that section cannot also be challenged.
That apart, in the instant case, when the delimitation of the wards
was made, such delimitation was not challenged on the ground of
colourable exercise of power or on any other ground of
arbitrariness. Any such challenge should have been made as soon
B
as the final order was published in the Gazette after objections to
the draft order were considered and not after the notification for
holding of the elections was issued. As was pointed out in Lakshmi
Charan Sen case [(1985) 4 SCC 689], that the fact that certain
claims and objections had not been disposed of before the final
C order was passed, cannot arrest the process of election.
25. In this connection, it may be necessary to mention that there
is one feature to be found in the Delimitation Commission Act,
1962 which is absent in the U.P. Act. Section 10 of the Act of
1962 provided that the Commission shall cause each of its order
D made under Sections 8 and 9 to be published in the Gazette of
India and in the Official Gazettes of the States concerned. Upon
publication in the Gazette of India every such order shall have the
force of law and shall not be called in question in any court.
Because of these specific provisions of the Delimitation
Commission Act, 1962, in the case of Meghraj Kothari v.
E Delimitation Commission [AIR 1967 SC 669], this court held
that notification of orders passed under Sections 8 and 9 of that
Act had the force of law and therefore, could not be assailed in
any court of law because of the bar imposed by Article 329. The
U.P. Act of 1959, however, merely provides that the draft order
F of delimitation of municipal areas shall be published in the Official
Gazette for objections for a period of not less than seven days.
The draft order may be altered or modified after hearing the
objections filed, if any. Thereupon, it shall become final. It does
not lay down that such an order upon reaching finality will have
the force of law and shall not be questioned in any court of law.
G For this reason, it may not be possible to say that such an order
made under Section 32 of the U.P. Act has the force of law and is
beyond challenge by virtue of Article 243-ZG. But any such
challenge should be made soon after the final order is published…”
60. In Dravida Munnetra Kazhagam v. State of T.N. (supra),
H this Court dealt with certain interlocutory applications that were filed
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 841
[R. F. NARIMAN, J]

seeking directions for compliance with the constitutional mandate A
concerning elections to local bodies. This Court dealt with contentions
raised by the parties before it as follows:
“10. It, thus, emerges that before the election process could begin
as per the State Election Commission’s Press Release dated 2-
12-2019, the State of Tamil Nadu increased the number of districts B
from 31 to 39 and also restructured various talukas. However,
with regard to posts of Chairman and Vice-Chairman of District
Panchayat Councils, elections are still sought to be held only for
31 posts. This resultant incongruity has prompted the appellants
to file these applications with prayers to strike down the
Notification dated 2-12-2019; hold elections for the entire State C
comprising all 39 revenue districts; and conduct such local body
elections only after completion of all legal formalities i.e. after
delimitation of the newly carved districts. A specific direction has
also been prayed for, to compel the respondents to first carry out
delimitation, reservation, rotation processes and fulfil all other legal D
requirements before notifying or conducting elections of any
panchayat at the village, intermediate or district level.
11. Having heard the learned counsel for the parties at a
considerable length and after an in-depth analysis of various
statutory provisions as well as the constitutional scheme under
Part IX which envisages democratisation of grass-root level E
administration, we are of the view that, as per Article 243-B,
panchayats have to mandatorily be constituted in a State at the
village, intermediate and district levels. Article 243-C requires the
State, as far as is practicable, to maintain a similar ratio between
the population residing within the territory of a particular panchayat F
and the number of seats allocated to it, across all panchayats in
the State. Further, each panchayat must be divided into territorial
constituencies and per Article 243-D, seats in proportion to their
population must be reserved for Scheduled Castes and Scheduled
Tribes in each panchayat.
G
12. It is, thus, clear that the constitutional object of Part IX cannot
be effectively achieved unless the delimitation exercise for
constitution of local bodies at all levels is properly undertaken.
Such exercise in the State of Tamil Nadu must keep in view the
criteria for delimitation of wards prescribed under the Tamil Nadu
Local Bodies Delimitation Regulations, 2017 (formulated under H
842 SUPREME COURT REPORTS [2021] 2 S.C.R.

A the Tamil Nadu Delimitation Commission Act, 2017), which criteria
must itself not be contrary to Article 243-C read with Article 243-
B(1) of the Constitution.
13. Noticing how at the completion of the delimitation process
there were only 31 revenue districts, but despite a subsequent
B increase in number of districts to 39, no fresh delimitation exercise
has been undertaken, it is clear that the State Government cannot
fulfil the aforestated constitutional mandate. There is no identified
data elucidating population proportions and, hence, requisite
reservation for Scheduled Castes and Scheduled Tribes cannot
be provided for, both in re village panchayat wards or Chairman/
C Vice-Chairman of District bodies. We, hence, have no doubt that
the election process as notified by the State Election Commission
on 2-12-2019, in respect of the newly constituted nine districts
cannot be held unless fresh delimitation exercise in respect thereto
is first completed. The State Government cannot justify holding
D local body elections of these nine districts by relying upon this
Court’s order dated 18-11-2019 [C.R. Jayasukin v. T.N. State
Election Commission, 2019 SCC OnLine SC 1664] as the said
order itself mandates notification of elections only after completing
“all legal formalities”.

E 14. The contention of the respondents that the present proceedings
amount to “calling in question an election” and hence not being
maintainable in view of the express constitutional embargos of
Articles 243-O and 243-ZG does not impress us for the present
proceedings are only to further the expeditious completion of
prerequisites of a fair election. Hence, the following ratio of a
F coordinate Bench in Election Commission of India v. Ashok
Kumar, (2000) 8 SCC 216 squarely applies to the present case:
“32. … (2) Any decision sought and rendered will not amount
to “calling in question an election” if it subserves the progress
of the election and facilitates the completion of the election.
G Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the
election.
(3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-
H settled parameters which enable judicial review of decisions
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 843
[R. F. NARIMAN, J]

of statutory bodies such as on a case of mala fide or arbitrary A
exercise of power being made out or the statutory body been
shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress
of the election proceedings, judicial intervention is available if
assistance of the court has been sought for merely to correct B
or smoothen the progress of the election proceedings, to remove
the obstacles therein, or to preserve a vital piece of evidence if
the same would be lost or destroyed or rendered irretrievable
by the time the results are declared and stage is set for invoking
the jurisdiction of the court.”
C
61. Accordingly, directions were issued ordering the respondents,
including the Delimitation Commission, to delimit 9 newly constituted
districts in accordance with law and only thereafter hold elections for
their Panchayats at the village, intermediate and district levels within a
period of 4 months.
D
62. Shri Tushar Mehta, learned Solicitor General has exhorted us
to hold that this judgment is per incuriam in that it flies in the face of the
earlier decisions of this Court. We find nothing in this judgment as flying
in the face of the earlier judgments of this court. On the contrary, the
Court extracts the ratio in Ashok Kumar’s case (supra) and thereafter
issues directions to the authorities concerned. E
63. A conspectus of the aforesaid judgments in the context of
municipal elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality
can be called in question except by an election petition
presented to a Tribunal as is provided by or under any law F
made by the Legislature of a State. This would mean that
from the date of notification of the election till the date of
the declaration of result a judicial hands-off is mandated by
the non-obstante clause contained in Article 243ZG debarring
the writ court under Articles 226 and 227 from interfering
G
once the election process has begun until it is over. The
constitutional bar operates only during this period. It is
therefore a matter of discretion exercisable by a writ court
as to whether an interference is called for when the electoral
process is “imminent” i.e, the notification for elections is
yet to be announced. H
844 SUPREME COURT REPORTS [2021] 2 S.C.R.

A II. If, however, 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 provided that
the election process, once begun, cannot be postponed or
protracted in any manner.
III. The non-obstante clause contained in Article 243ZG does
B
not operate as a bar after the election tribunal decides an
election dispute before it. Thus, the jurisdiction of the High
Courts under Articles 226 and 227 and that of the Supreme
Court under Article 136 of the Constitution of India is not
affected as the non-obstante clause in Article 243ZG
C operates only during the process of election.
IV. Under Article 243ZA(1), the SEC is in overall charge of
the superintendence, direction and control of the preparation
of electoral rolls, and the conduct of all municipal elections.
If there is a constitutional or statutory infraction by any
authority including the State Government either before or
D
during the election process, the SEC by virtue of its power
under Article 243ZA(1) can set right such infraction. For
this purpose, it can direct the State Government or other
authority to follow the Constitution or legislative enactment
or direct such authority to correct an order which infracts
E the constitutional or statutory mandate. For this purpose, it
can also approach a writ court to issue necessary directions
in this behalf. It is entirely upto the SEC to set the election
process in motion or, in cases where a constitutional or
statutory provision is not followed or infracted, to postpone
the election process until such illegal action is remedied.
F This the SEC will do taking into account the constitutional
mandate of holding elections before the term of a
municipality or municipal council is over. In extraordinary
cases, the SEC may conduct elections after such term is
over, only for good reason.
G V. Judicial review of a State Election Commission’s order is
available on grounds of review of administrative orders.
Here again, the writ court must adopt a hands-off policy
while the election process is on and interfere either before
the process commences or after such process is completed
unless interfering with such order subserves and facilitates
H the progress of the election.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 845
[R. F. NARIMAN, J]

VI. Article 243ZA(2) makes it clear that the law made by the A
legislature of a State, making provision with respect to
matters relating to or in connection with elections to
municipalities, is subject to the provisions of the Constitution,
and in particular Article 243T, which deals with reservation
of seats.
B
VII. The bar contained in Article 243ZG(a) mandates that there
be a judicial hands-off of the writ court or any court in
questioning the validity of any law relating to delimitation of
constituency or allotment of seats to such constituency made
or purporting to be made under Article 243ZA. This is by
virtue of the non-obstante clause contained in Article 243ZG. C
The statutory provisions dealing with delimitation and
allotment of seats cannot therefore be questioned in any
court. However, orders made under such statutory provisions
can be questioned in courts provided the concerned statute
does not give such orders the status of a statutory provision. D
VIII. Any challenge to orders relating to delimitation or allotment
of seats including preparation of electoral rolls, not being
part of the election process as delineated above, can also
be challenged in the manner provided by the statutory
provisions dealing with delimitation of constituencies and
E
allotment of seats to such constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only to
courts and not the State Election Commission, which is to
supervise, direct and control preparation of electoral rolls
and conduct elections to municipalities.
F
X. The result of this position is that it is the duty of the SEC to
countermand illegal orders made by any authority including
the State Government which delimit constituencies or allot
seats to such constituencies, as is provided in proposition
(IV) above. This may be done by the SEC either before or
during the electoral process, bearing in mind its constitutional G
duty as delineated in the said proposition.
64. Applying the law to the facts of the present case, the first
important thing to be noted is that the constitutional bar contained in
Article 243ZG(a) does not apply to the facts of this case. As has correctly
been pointed out by Shri Laud, the judgment in Anugrah Narain Singh H
846 SUPREME COURT REPORTS [2021] 2 S.C.R.

A v. State of U.P. (supra) would apply as the Goa Municipalities Act does
not contain any provision akin to Section 10(2) or 10(4) of the Delimitation
Commission Act, 1962 that was highlighted in Meghraj’s case (supra),
providing that orders of the Delimitation Commission have the force of
law. This being the case, the first and foremost roadblock that has been
put forward by the learned Solicitor General has been cleared. No fault
B
can be found with the Division Bench of the High Court in ignoring any
constitutional bar in arriving at the conclusion that the 04.02.2021 order
is illegal and ultra vires the provisions of Article 243T of the Constitution
of India read with Sections 9 and 10 of the Goa Municipalities Act. On
merits, it is important to note that Shri Tushar Mehta, learned Solicitor
C General, did not advance any argument that the reservation of seats for
women and OBCs was in accord with the provisions of the Constitution
and the Goa Municipalities Act. Indeed, even otherwise, we do not find
fault with the Division Bench judgment in its conclusion that a fraction
has to be worked upwards whatever that fraction be, given the mandatory
D language of Article 243T of the Constitution which provides for reservation
for women which shall not be less than one-third. Also, the findings of
the High Court on OBC reservation not complying with the mandate of
Section 9(2)(bb) in that in several councils it was below 27% cannot be
faulted. The same goes for observations made on the 1 ST seat in
Sanguem and non-application of the principle of rotation.
E 65. However, there can be no doubt that Shri Tushar Mehta is
right in stating that assurances given by the Advocate General that the
State Government would not raise the bar of Article 243ZG(b), but would
instead argue that since the election programme was “imminent” and
that therefore, the High Court ought not intervene, cannot alter the position
F in law. There can be no doubt that no concession by counsel can operate
against a constitutional bar.
66. However, on the peculiar facts of these cases, this Court is
constrained not to interfere with the impugned judgment under Article
136 of the Constitution of India. This is because of the following special
features of the facts of these cases:
G
(i) First and foremost, it is important to note that the State
Election Commissioner is 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
H as is mandated by Article 243K.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 847
[R. F. NARIMAN, J]

(ii) It is important to note that the SEC had itself postponed the A
municipal elections twice due to the COVID-19 pandemic
raging throughout the State. On the second occasion, by
the notification dated 14.01.2021, the SEC had itself
postponed these elections till April 2021 or the election date
which may be determined by the State Election Commission.
B
Obviously, the expression “or the election date which may
be determined by the Commission” would indicate a date
beyond April, 2021, given the situation in which the State of
Goa finds itself due to the COVID-19 pandemic. It is
important to note that the High Court in its direction
contained in paragraph 81(e) directs the SEC to act in C
accordance with this notification so that elections are held
by 15.04.2021.
(iii) In Dnyaneshwar Narso Naik’s case (supra) and Sujay
S. Lotlikar’s case (supra), solemn assurances were made
by the Advocate General that orders of reservation in wards D
of Municipal Councils will be made at least three weeks
before the election programme is announced. The State
Government instead of acting upon these statements, inserted
an amendment by adding a proviso to Section 10 of the
Goa Municipalities Act in which a lesser period was
mentioned i.e., a period of at least one week. E
(iv) The Law Secretary’s letter dated 05.02.2021, calling upon
the Director, Urban Development, to issue a reservation
order under Section 10 of the Goa Municipalities Act was
to do so “at an early date”. The Director, by an order passed
one day before this communication i.e., on 04.02.2021, with F
lightning speed provided for reservation in all 11 Municipal
Councils of women/SCs/STs and OBCs prompting the High
Court to observe that due application of mind could not have
been bestowed before issuing such an order.
(v) All the writ petitions in the present cases were filed between
G
9th and 12th February, 2021 immediately challenging the
Director’s order dated 04.02.2021. None of these writ
petitions contained a prayer that would hold up any election
programme. The only prayer was to strike down the
aforesaid order so that the Director in issuing a fresh order
would have to truly and faithfully carry out the constitutional H
848 SUPREME COURT REPORTS [2021] 2 S.C.R.

A mandate of Article 243T of the Constitution of India and
the statutory mandate contained in Section 9 of the Goa
Municipalities Act.
(vi) When the High Court issued notice on 15.02.2021 for final
hearing on 22.02.2021, the SEC did not inform the High
B Court that vide a note of 05.02.2021 (disclosed for the first
time by an affidavit filed in this Court on 08.03.2021),
elections were proposed to be held on 20.03.2021.
(vii) In a clear attempt to overreach the High Court, the State
Election Commissioner, who is none other than the Law
Secretary of the State of Goa, issues an election notification
C 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, which
commences hearing the writ petitions at 9.00 a.m.1
(viii) After the judgment was pronounced by the Division Bench
D of the High Court on 01.03.2021 and no stay granted, this
court, “issued notice” on 04.03.2021 and stayed the
impugned judgment, the effect of which was to revive the
election programme that was notified on 22.02.2021. Despite
this, the State Election Commission, on this very day i.e.,
E 04.03.2021, amended the aforesaid notification by extending
the time period for filing of nomination for 5 Municipal
Councils from 04.03.2021 till 06.03.2021 between 10:00 hrs
to 13:00 hrs. and therefore, rescheduled the election.
1
It is well settled that actions of the State with oblique or indirect object will be
F attributed to “malice in law”. This Court in Kalabharati Advertising v. Hemant
Vimalnath Narichania & Ors (2010) 9 SCC 437 has summarised this as follows:
“25. The State is under obligation to act fairly without ill will or malice— in fact or in
law. “Legal malice” or “malice in law” means something done without lawful excuse. It
is an act done wrongfully and wilfully without reasonable or probable cause, and not
necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the
rights of others. Where malice is attributed to the State, it can never be a case of
G personal ill will or spite on the part of the State. It is an act which is taken with an
oblique or indirect object. It means exercise of statutory power for “purposes foreign
to those for which it is in law intended”. It means conscious violation of the law to the
prejudice of another, a depraved inclination on the part of the authority to disregard the
rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur
v. Shivakant Shukla [(1976) 2 SCC 521], S.R. Venkataraman v. Union of India [(1979)
2 SCC 491], State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739], BPL Ltd. v. S.P.
H Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568])”
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH 849
[R. F. NARIMAN, J]

67. Given the aforesaid, the order of the High Court contained in A
paragraph 81 of the impugned judgment will be observed with two
changes. In paragraph 81(c), it is clarified that the period of 10 days in
which the Director, Urban Development is to issue a fresh order will be
10 days from the date of this judgment. Also, instead of “15th April”
occurring in paragraph 81(e), the words “30th April” be substituted. All
B
the other directions will remain undisturbed.
68. The most disturbing feature of these cases is the subversion
of the constitutional mandate contained in Article 243K of the Constitution
of India. 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 C
qua panchayats and municipalities. 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 D
High Court. 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. We therefore declare that the additional charge
given to a Law Secretary to the government of the state flouts the
constitutional mandate of Article 243K. The State Government is directed E
to remedy this position by appointing an independent person to be the
State Election Commissioner at the earliest. Such person cannot be a
person who holds any office or post in the Central or any State
Government. It is also made clear that henceforth, all State Election
Commissioners appointed under Article 243K in the length and breadth F
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 G
only independent persons to this high constitutional office. The directions
contained in this paragraph are issued under Article 142 of the Constitution
of India so as to ensure that the constitutional mandate of an independent
State Election Commission which is to conduct elections under Part IX
and IXA of the Constitution be strictly followed in the future. H
850 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 69. The appeals are disposed of accordingly.
Writ Petition (Civil) No. 309/2021
1. This writ petition has been filed under Article 32 of the
Constitution of India by a resident of Margao, Goa, challenging the
reservation order dated 04.02.2021 issued by the Director of Municipal
B Administration, Goa, and the notification dated 04.03.2021 which was
issued by the Goa SEC altering the original schedule of elections.
2. Given our judgment in the aforesaid appeals, in view of the fact
that the reservation order dated 04.02.2021 has been set aside and that
a fresh election schedule will have to be notified, the writ petition is
C allowed and the notification dated 04.03.2021 is also struck down.

Nidhi Jain Appeals disposed and petition allowed.

D

E

F

G

H