STATE OF GOA VS FOUZIYA IMTIAZ SHAIKH

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ABSTRACT

Between October 2020 and January 2021, goa local elections were repeatedly postponed due to the COVID-19 pandemic. Meanwhile, in November 2020, the governor of goa appointed the minister of justice as state election commissioner (SEC). When the election finally took place in February 2021, several established voting procedures were deviated from, at the suggestion of the new SEC. In particular, the city administration announced reservations that were allegedly disadvantageous for women. Written petitions were lodged against the reservation in Mumbai (Bombay) high court. The SEC announced that the elections would begin on the same day as the last hearing before the HC, arguing that the court should not intervene in ongoing elections.

INTRODUCTION

Free and fair elections are the foundation of democracy. The electoral commission is a constitutional official responsible for the fair conduct of elections. In 2021, the supreme court emphasized the need for an independent elections’ commissioner in the state of goa v. Fouziya Imtiaz sheikh case.

FACTS OF THE CASE

1. In this instance, Mr. Joshi, experienced counsel arguing for the SEC, admitted that the director violated the constitution by failing to reserve at least one-third of the quantity of seats in mormugao and mapusa municipal councils for women. He contends that the issue of reservation is within the purview of the directors, and thus, regardless of any constitutional or statutory violation, the SEC is powerless and has no option but to go ahead with the elections based on the challenged order dated February 4, 2021, and because it is charged with the duty of conducting timely elections.
2. The high court ruled that, bearing in mind the above philosophy, in introducing reservations for women in the constitution and subsequently in state legislation, we passionately believe that the course taken by respondent no. 2 breaches the mandate of law.
3. The court also said it failed to appreciate the helplessness of the state electoral commission, which is supposed to be an agency independent of the government. If the illegality has been noticed by the state electoral commission, it is expected to act promptly and issue appropriate instructions to the director to correct the said action, ensuring that it follows the mandate of the constitution, rather than rushing and release the election plan.
4. In addition, the court found that it appreciated the assertion made by the learned advocate general that although we have cases before us, as reflected in the note from which we learn the lack of a policy, the mere lack of a policy would not lead to arbitrariness have led to an unrecognizable and unjustifiable rotation of seats in different districts of the respective municipal councils. The reservation of women prescribed in the mandate is such a case. For similar reasons, this is the case in relation to the OBC reservations, although none of the petitioners before us raised this reason, but since we have read the note, we include it as one of the aspects demonstrating the non-application of spirit and attitude to disregarding the mandate of state legislation.
5. The court ruled that the understanding or theory of the fulfilment of the constitutional or statutory mandate in three instalments spread over 15 years is a unique device employed by the director in a vain attempt to justify the gross constitutional and statutory violation justify. Such a justification finds no basis either in the constitution or in the said law. Such a justification is neither legal nor comprehensible. Based on such a justification, maintaining the order of February 4th, 2020, is out of the question.

ISSUES OF THE CASE

The supreme court on April 3, 2021, sent notices to the state electoral commission and to Fouziya Imtiaz Shaikh, a supreme court petitioner, who had filed a reservation to prevent any ex-party order.

ARGUMENTS OF THE CASE

1. The representative on behalf of the State Election Commission (SEC) admitted that the director of the SEC had fizzled out in ensuring that in two municipalities one-third of the seats were reserved for women; Municipal Council of Mormugao and Mapusa. She further accepted the fact that the director needed to establish the reservation, but due to the COVID-19 outbreak and the contested order, the SEC needed to timely conduct the election.
2. The Bombay High Court in Goa found and strongly held that the reservation for women in the constitution and subsequently in the state elections is crucial to the collection and therefore the steps taken by the defendant constituted a violation of the law.
3. In addition, the court noted that the SEC is expected to make the amendments, and rectifications if it finds any form of illegality, and to provide further guidance and direction to the director, who operates in accordance with the directions and directions seeks a mandate enshrined in the constitution, rather than rushing and planning elections.
4. The Court further found that, in accordance with the theory of the Constitution and other statutes, the steps taken by the Director in three instalments spread over 15 years were worthless to justify the gross violation of the Constitution committed.

JUDGEMENTS OF THE CASE

• The supreme court postponed its decision on a petition filed by the state of goa appealing an order issued by Mumbai (Bombay) high court in goa on March 1, 2021, which set aside and cancelled the notice of elections in each of the five municipalities.
• A three-judge bench led by justices Rohinton Fali Nariman, B. R. Gavai, and Hrishikesh Roy deferred its decision on an appeal against the high court decision-making which had set aside the election notification in the municipalities of margao, mapusa, mormugao, sanguem, and quepem on Tuesday. Following that, the apex court mandated that written submissions be filed by March 12, 2021.
•  The supreme court sent notifications to the state election commission and Fouziya Imtiaz Shaikh, an applicant in the high court who had filed a caveat to preclude any ex-party order, on March 4, 2021. It stated that after hearing Mr. Tushar Mehta, learned general solicitor for the petitioner, Mr. Atmaram NS. Nadkarni, learned senior advocate for respondent no.1 and Mr. Abhay anil Anturkar, learned counsel for respondent no.2, the impugned high court direction as well as the election commission notification was issued in accordance with the high court judgement.
•  In addition, Mumbai (Bombay) high court in goa had allowed the SEC to continue the electoral process in other communities, while one in five communities was struck down for failing to reserve the wards for women as required by law. With Mumbai (Bombay) high court decision overturned by the apex court, the SEC can proceed with elections in the five boroughs that have been held in abeyance.
• The Bombay high court had stated in its order that the impugned order dated 04/02/2021, issued by the director and ex officio additional secretary, municipal administrator/urban development, goa, as far as it concerned the municipal council of sanguem, mormugao, mapusa, margao and quepem are suppressed and put aside.
• The court had ordered the director and additional secretary ex officio, municipality/urban development, goa to issue a new notice under subsection 1 of section 9r/w. Subsection 1 of section 10[1] of the goa municipalities act 1968 within 10 days from today, which among other things will ensure that no less than one third of the total number of seats reserved for direct elections to local councils are reserved for women.
• The goa supreme court found that elections are the central institution of democratic representative governance since the authority of government in a democratic system derives solely from the concept of the governed. The most important mechanism for turning this consent into state authority is the holding of free and fair elections. Democratically elected nations are formed through free and impartial elections, and India, which is a colossal democracy, calls for such a process.

CONCLUSION

In this instance, the experienced lawyers of the parties have given their opinions on the merits of the written application and on the legality of the decision of January 18, 2019. Although at this stage the court is not going further into the issue as the written petition is being examined in the high court. The apex court also ruled that the nature of the amendment made by the high court because of the contested order of 4 October 2019 in the form of an ad hoc interim agreement was, in the court’s view, beyond its authority and not within the purview of the judiciary review under article 226[2] of the constitution. An injunction should not normally even provide final relief. Otherwise, the appeal is successful and is therefore admissible. The high court order of 4 October 2019 under appeal is hereby set aside and set aside. We clarify that writ petition no. 8242 of 2019 will be decided independently and unaffected by the comments we have made in the present order on its own behalf in accordance with the law. Costs are not awarded by the court.

[1] Reservation for seats for women

[2] Power of High Court to issue some writs

This Article is Written by Kaynaat Rana, Intern under Legal Vidhiya

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