Calcutta High Court (Appellete Side)
Sri Dipankar Rit vs State Of West Bengal And Others on 13 June, 2023
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(PUBLIC INTEREST LITIGATION)
APPELLATE SIDE
RESERVED ON: 12.06.2023
DELIVERED ON: 13.06.2023
CORAM:
THE HON'BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
WPA (P) 250 OF 2023
SRI DIPANKAR RIT
VERSUS
STATE OF WEST BENGAL AND OTHERS
WITH
WPA (P) 286 OF 2023
ADHIR RANJAN CHOWDHURY
VERSUS
THE WEST BENGAL STATE ELECTION COMMISSION AND OTHERS
WITH
WPA (P) 287 OF 2023
SUVENDU ADHIKARI AND ANOTHER
VERSUS
THE WEST BENGAL STATE ELECTION COMMISSION AND OTHERS
Appearance:-
Mr. Subir Sanyal, Adv.
Mr. Lokenath Chatterjee, Adv.
Mr. Sukanta Ghosh, Adv.
Mr. Partha Chakraborty, Adv.
........For the Petitioner in
WPA (P) 250 OF 2023
Mr. Koustav Bagchi, Adv.
Mr. Debayan Ghosh, Adv.
Page 1 of 44
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
REPORTABLE
Ms. Priti Kar, Adv.
.....for the Petitioner in
WPA(P)/286/2023
Mr. Guru Krishna Kumar, Ld. Sr. Adv.
Mr. Soumya Majumder, Adv.
Mr. Srijib Chakraborty, Adv.
Mr. Lokenath Chatterjee, Adv.
Mr. Vikas Singh, Adv.
Mr. Sayak Chakraborti, Adv.
Mr. Anish Kumar Mukherjee, Adv.
Mr. Suryaneel Das, Adv.
Mr. Chiranjit Pal, Adv.
.....For the Petitioner
In WPA (P) 287 of 2023
Mr. Jayanta Mitra, Sr. Adv.
Mr. Jishnu Saha Ld. Sr. Adv.
Ms. Sonal Sinha, Adv.
Mr. Avishek Prasad, Adv.
Ms. Sanjukta Samanta, Adv.
......For the State Election Commission
Mr. Kalyan Bandyopadhyay, Ld. Sr. Adv.
Mr. Anirban Ray, Ld. Government Pleader
Mr. T.M. Siddiqui, Adv.
Mr. Sirsanya Bandopadhyay, Adv.
Mr. Raja Saha, Adv.
Mr. Arka Kumar Nag, Adv.
Mr. Piyush Agarwal, Adv.
.......For the State
Mr. Ashoke Kumar Chakraborty, Ld. A.S.G.
Mr. Billwadal Bhattacharya, Ld. D.S.G.I
Mr. Ayanabha Raha, Adv.
Mr. Sujit Bhunia, Adv.
....For the Union of India
Mr. Amajit De, Special PP, C.B.I.
.....For the Respondent No.16
in W.P.A.(P) 250 OF 2023
Mr. Anuran Samanta, Adv.
.....For the Election Commission of India
Mr. Sandipan Banerjee, Adv.
Mr. Ankit Sureka, Adv.
Mr. Sobhan Majumder, Adv.
.....For the Howrah
Municipal Corporation
Mr. Bikram Banerjee, Adv.
Mr. Sudipta Dasgupta, Adv.
Page 2 of 44
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
REPORTABLE
Ms. Dipa Acharyya, Adv.
Mr. Sagar Dey, Adv.
.....For Sangrami Jautha
Mancha/Intervenor/Applicants
(W.P.A.(P) 287 OF 2023)
Mr. Ritzu Ghosal, Adv.
Mr. Mrityunjoy Chatterjee, Adv.
Mr. Sayantan Chatterjee, Adv.
.....For the Intervenor
Mr. Anindya Bose, Adv.
Mr. Diptendu Mondal, Adv.
....For the Petitioner
in the matter of
Sikhanuragi United Association, Balichak
Versus
Union of India and Others
Mr. Sayan Banerjee, Adv.
....Appearing in Person
JUDGMENT
(Judgment of the Court was delivered by T.S. Sivagnanam, CJ. and
Hiranmay Bhattacharyya, J.)
1. All the writ petitions concern the forth coming elections to the Panchayats
in the State of West Bengal. WPA (P) 286 of 2023 has been filed as a public
interest litigation by one Adhir Ranjan Chowdhury. The petitioners in WPA
(P) 287 of 2023 are Mr. Suvendhu Adhikari and Mr. Tarunjyoti Tewari. The
petitioner in WPA 250 of 2023 is Mr. Dipankar Rit. All the three writ
petitions have been filed as public interest litigations. WPA (P) No. 286 of
2023 and 287 of 2023 were heard by this Court on 09.06.2023 and the
following order was passed.
1. These writ petitions have been filed as public interest
litigations concerning the forthcoming election to the
Panchayats in the State of West Bengal.
2. The matter was mentioned before this Court at 10.30 a.m.
today and considering the urgency, leave was granted to file
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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these writ petitions and the same were directed to be listed
in the supplementary list today and to be taken at around 12
noon.
3. The respondents have been served and in particular, the
West Bengal State Election Commission has also been served
and represented by Mr. Jishnu Saha, learned Senior
Advocate.
4. The prayer in WPA(P) 286 of 2023 is for issuance of Writ
of Mandamus to set aside the notification issued by the State
Election Commission notifying the elections for the
Panchayats and issue the same afresh after implementation
of the demands made by the writ petitioner vide his
representation dated 24th April, 2023. The petitioner also
seeks for deployment of central forces from the date of filing
nomination till the declaration of results; for a direction upon
the Election Commissioner, West Bengal State Election
Commission to ensure that the candidates are permitted to
file their nominations before the State Election Commissioner
and/or concerned District Magistrate of the concerned district
and for certain other interim reliefs.
5. In WPA(P) 287 of 2023 the petitioners seek for issuance
of Writ of Certiorari to quash the decision arrived at by the
respondent authorities in allowing only five days to submit
nomination papers for the upcoming Gram Panchayat
elections to be held on 8th July, 2023; to appoint an Hon'ble
retired Judge of this Court as Special Officer/Observer to
ensure the conduct of a free, fair, transparent and peaceful
election to the three-tier Gram Panchayats in the State of
West Bengal; to allow the prospective candidates to file their
nominations in the head office of the West Bengal State
Election Commission or in the alternative allow the filing of
their nominations online; provide adequate number of Central
Para Military Forces immediately for the conduct of free and
fair election; to extend the time for filing of nomination papers
by at least 12 days from the date of notification of election to
complete the process of filing such nomination papers and to
comply with the directions issued by this Court issued in
WPA(P) 611 of 2022 dated 28th March, 2023; to install CCTV
Cameras at all polling stations; to ensure simultaneous
counting of the votes for the Gram Panchayats, Panchayat
Samities as well as Zilla Parishads under the
superintendence of a Special Officer; to prohibit the Election
Commission from using any contractual workers and/or civic
volunteers and/or teachers and non-teaching staff whose
issue is subjudice by not giving any election duty; to direct
the Election Commission to ensure imposition of prohibitory
orders under Section 144 of the Cr.P.C. within one kilometer
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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radius of the various counting stations and other interim
reliefs.
6. We have elaborately heard Mr. Guru Krishna Kumar,
learned senior advocate appearing for the petitioners in
WPA(P) 287 of 2023, Mr. Koustav Bagchi, learned advocate
appearing for the petitioner in WPA(P) 286 of 2023, Mr.
Jishnu Saha, learned senior advocate appearing for the West
Bengal State Election Commission, Mr. Kalyan
Bandopadhyay, learned senior advocate appearing for the
State of West Bengal and other learned advocates who are
present in Court.
7. From the varied prayers sought for in both the writ
petitions the Court is able to decipher that the object of the
writ petitions is not to stall the elections nor interdict the
election process. This is presumably because the petitioners
are aware of the legal position in this regard. The endeavour
of the petitioners appears to be to ensure free and fair
election. Therefore, the Court is required to consider as to
how best the same can be ensured so that not only the
nominations are filed in a peaceful manner, the election is
also conducted and results are declared in a fair and
peaceful manner. We are informed that the nominations
have to be filed in physical format.
8. It is submitted by Mr. Kalyan Bandopadhyay, learned
senior advocate that there is a decision of the Hon'ble
Supreme Court which has set aside the order passed by this
Court in the election conducted during 2018 directing the
filing of nominations electronically.
9. Be that as it may, the endeavour of the State Election
Commission should be that there should be fair and free
elections and the electorate should have confidence in the
Election Commission that all will be done well so that they
can exercise their franchise in a peaceful manner and elect
their desired representative.
10. Prima facie, we are of the view that the time limit fixed
in the notification is inadequate. The notification has been
uploaded/published today i.e. on 9th June, 2023 and filing
of nominations would start from 11 AM today.
11. This, in our view, would appear to be hurrying up the
process which needs to be reconsidered by the State Election
Commission. We are also informed that the term of office of
the present elected bodies of all the Panchayats at the three-
levels is to come to an end in August, 2023.
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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12. Bearing this in mind, the State Election Commission can
fix a reasonable time for the prospective candidates to file
their nominations because it is insisted that nominations
have to be filed in physical form.
13. The other concern expressed is with regard to the safety
of the candidates who seeks to file their nominations. It is
the uniform representation of the petitioners that they seek
for directions to file their nominations before the District
Magistrate of the concerned district or the State Election
Commission. It is not clear as to what is the apprehension in
the minds of the prospective candidates or that of the
petitioners. It is said that past instances do not give them
confidence to file their nominations before the concerned
Block Development Officer of the Panchayat. This issue can
also be examined by the State Election Commission.
14. So far as ensuring free and fair polls, it goes without
saying that right from the stage of filing of nomination till the
counting of votes and publishing results the entire process
should be videographed and the said video footages have to
be protected and preserved and the duty lies with the State
Election Commission in this regard.
15. With regard to the deployment of Central Forces, if in
the opinion of the State Election Commission it would augur
well to seek for deployment of Central Forces so that the
State Police Force can work along with the Central Forces so
as to preserve and maintain law and order situation, it is for
the State Election Commission to take a decision in that
regard. We, therefore, call for the response from the State
Election Commission on such issue.
16. The other concerns expressed in the writ petitions shall
also be taken note of by the State Election Commission and
their response to such issues shall be filed in the form of a
report before this Court on 12th June, 2023.
17. The petitioners have also sought for appropriate direction
not to deploy contractual employees and badli workers as
election officers or to take part in the election process and in
this regard we note that a writ petition has been filed as a
public interest litigation wherein certain instructions given by
the Chief Election Commissioner have been referred to
wherein there appears to be an embargo for deploying
contractual staff in the election process. This aspect also
shall be considered by the State Election Commission and be
addressed in the report to be submitted on the next date.
18. Mr. Bandopadhyay, learned senior advocate appearing
for the State of West Bengal submits that the State is
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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questioning the maintainability of the writ petitions. This
issue will be considered at an appropriate stage.
19. We find that the State Election Commissioner has been
impleaded by name as the 9th respondent in WPA(P) 287 of
2023 which, in our opinion, uncalled for.
20. Mr. Guru Krishna Kumar, learned senior advocate
appearing for the petitioner in WPA(P) 287 of 2023, on
instructions, submits that the 9th respondent is given up and
leave may be granted to correct the cause-title.
21. The learned advocate-on-record for the writ petitioner in
WPA(P) 287 of 2023 is permitted to delete the 9th respondent
from the array of respondents and the cause-title be
corrected.
22. Let the matter appear on 12th June, 2023.
2. In WPA No. 287 of 2023 an organization called Sangrami Joutha
Mancha and its convenor Mr. Baskar Bose sought for impleadment in the
writ petition and for certain other reliefs. Three other petitioners namely
Sikshanuragi United Association Balichak and its Secretary Mr. Abu Hasan
Kan Chowdhury and Mr. Sayan Banerjee Advocate appearing in person
sought leave to file the petitions. Since the relief sought for in those petitions
were more or less identical to that of the varied prayers sought for in the
three writ petitions, we permitted them to intervene in the proceedings
without granting leave to file separate petitions/applications.
3. As noted in the order dated 09.06.2023, the petitioner in WPA (P) No.
286 of 2023 sought for issuance of writ of mandamus to set aside the
notification issued by the State Election Commission notifying the elections
for panchayats and issue the same afresh after complying with the demands
made the writ petitioners in the representation dated 24.04.2023. The
petitioner also seeks for deployment of central forces from the date of filing
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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of the nominations till the declaration of results; to direct the State Election
Commissioner to ensure that the candidates are permitted to file the
nominations before the State Election Commissioner and /or concerned
District Magistrates of the concerned districts. In WPA (P) no 287 of 2023
the petitioners have prayed for issuance of writ of certiorari to quash a
decision arrived at by the respondent authorities in allowing only five days
to submit nomination papers for the upcoming panchayat elections to be
held on 08.07.2023; to appoint a Hon'ble Retired Judge of this court as
Special Officer/Observer to ensure the conduct of a free, fair, transparent
and peaceful election to allow the prospective candidates to file their
nominations in the head office of the State Election Commission in the
alternative allowing the filing of the nominations online; provide adequate
number of central para military forces for the conduct of free and fair
election; to extend the time for filing of nomination papers by at least 12
days from the date of notification of election to complete the process of filing
such nomination papers and to comply with the direction issued in WPA (P)
No. 611 of 2022 dated 28.03.2022; to install CCTV cameras at all polling
stations; to ensure simultaneous counting of votes for the gram panchayats,
panchayat samities as well as zilla parishads under the superintendence of
a special officer; to prohibit the Election Commission from using any
contractual workers and/or civic volunteers and/or teachers and non
teaching staff whose issue is subjudice by not giving any election duty; to
direct the election Commission to ensure requisition of prohibitory orders
under Section 144 CrPC within one kilometer radius of the various counting
stations. In WPA (P) 250 of 2023, the petitioner seeks for issuance of a writ
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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of mandamus to command the respondents not to engage or deploy any
contractual/casual workers in the departments of the State Government
local bodies, public sector undertakings, anganwadi workers working under
the ICDS project, para teachers or any other categories of contractual and
casual workers as polling officers; commanding the respondents disclose the
details of the contractual /casual workers, civic volunteers etc. who were
deployed as polling officers in the last panchayat election held in the year
2017, parliamentary election held in the year 2018 and the state assembly
election held in the year 2021 and upon such disclosure direct investigation
of CBI in regard to the engagement of such casual workers. The petitioner
has also sought for transfer of Deputy Commissioner of Howrah
Municipality and Secretary of Howrah Municipality and to direct them to
disclose by way of affidavits their assets both movable and immovable
accumulated so far.
4. By order dated 09.06.2023, while taking up of WPA (P) 287 of 2023 as
the lead case, we noted that though the prayers sought for in the two writ
petitions were varied in nature what emerged was that the petitioners had
no intention to stall the election nor interdict the election process. We noted
that this is presumably because that the petitioners are aware of the legal
position in this regard. Further we noted that the endeavor of the petitioners
appears to ensure free and fair election and therefore the task assigned to
the court was to consider as to how best the same can be ensured so that
not only the nominations are filed in a peaceful manner, the election are
also conducted and the results declared in a free and peaceful manner.
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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When we passed the order dated 09.06.2023 we were of the prima facie view
that the time limit fixed in the election scheduled is inadequate as the
notification fixing the schedule was uploaded/published on 09.06.2023 and
filing of nominations was to commence from 11:00 AM on 09.06.2023.
Therefore we were of the prima facie view that there appears to be a
hurrying up of process which needs to be considered by State Election
Commission. We also took note of the fact the term of office of the present
elected body of all the panchayats at the three levels is to come to an end in
August 2023. The court noted the apprehension in the minds of the
prospective candidates or that of the petitioners with regard to the filing of
the nominations before the Block Development Officer or the Sub Divisional
Officers largely due to the past instances. After noting the submissions
made on either side, we called for a response from the State Election
Commission on the prayer/issues which were highlighted in the writ
petitions. WPA (P) 250 of 2023 was filed much earlier and at the request of
the learned advocates for the State Election Commission when the matter
came up for admission on 06.06.2023 the matter was directed to be listed
on 13.06.2023 to enable the learned advocate for the State Election
Commission to get appropriate instruction on the prayer sought for in the
writ petition. As mentioned above, the sum and substance of the relief
sought for in the said writ petition is not to deploy any contractual staff,
casual workers, civic volunteers etc. for election duty.
5. We have elaborately heard the learned Advocates for the parties.
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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6. In terms of the direction issued on 09.06.2023 an unsigned report
along with annexure was filed by the State Election Commissioner. The
report is under the following heads 1) regarding extension for the date of
nomination 2) regarding appointment of observers 3) regarding online
nomination 4) regarding deployment of central para military forces 5)
regarding CCTV cameras at all polling stations 6) regarding videography of
important events 7) regarding simultaneous counting 8) regarding filing of
nominations before District Magistrate of the district concerned or the State
Election Commissioner.
7. With regard to the prayer sought for in WPA no. 250 of 2023 to prohibit
deployment of contractual/temporary workers for election duty the State
Election Commission has filed an unsigned report along with annexures. In
the said report, reference has been made to Section 6 of the West Bengal
State Election Commission Act,1994 and Section 28(1) of the West Bengal
Panchayat Election Act, 2003.There is also reference to the Handbook for
Returning Officer (Panchayat Election) and the various provisions contained
therein.
8. The first aspect to be dealt with is with regard to the extension of the
dates of filing the nomination or extending the schedule as notified by the
State Election Commission dated 09.06.2023.
9. It has been uniformly contended by the aforesaid writ petitioners that
the period fixed in the Notification issued under Section 43 of the West
Bengal Panchayat Elections Act 2003, (for short the "2003 Act") should be
directed to be extended considering the large number of Constituencies/
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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seats for which the three Tier Panchayat Elections for the year 2023 is to be
held.
10. Mr. Guru Krishna Kumar, learned senior advocate appearing in
support of the writ petition would contend that this Court should direct the
Commission to extend the period for filing nomination as such power of
extension lies with the Commission under Section 43(1) of the 2003 Act.
11. In reply to such submission, Mr. Mitra, learned Senior Counsel
representing the Commission drew the attention of the Court to the Report
filed by the Commission and contended that there is a provision for
extension of date for making nomination by one day as would be evident
from the dates fixed for various stages of election and the Commission may
increase the period for filing nominations by one day after assessing the
ground realities.
12. For the purpose of deciding the issue whether the Court can issue a
Mandamus directing the Commission to extend the period for filing
nominations, it will be profitable to take note of some of the provisions of the
2003 Act relating to nomination of candidates for conduct of elections.
13. Section 42 of the 2003 Act empowers the State Government to appoint
the date or dates and hour or hours of poll for any election or bye-election
by issuing a notification and such power is to be exercised by the State
Government in consultation with the Commission.
14. After the State Government issues the notification under Section 42,
the 2003 Act mandates the Commission to issue a notification under
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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Section 43 appointing the dates for various stages of election. Proviso to
Section 43 empowers the Commission to extend, by notification, the date for
completion of any election for reasons which the Commission considers to
be sufficient.
15. Mr. Kumar, learned Senior Counsel would contend that such power of
extension is very wide and is not subject to any limitation. In order to decide
such contention, it would be profitable to refer to the proviso to Section
43(1) and Sub-section (2) of Section 43 for which the same are extracted
hereinafter.
"43. '[(1) After the issue of the notification under section 42,
the Commission shall, by notification, appoint the dates for
various stages of election in the manner as follows:-
(a) the last date for making nomination which shall be not
later than twenty-one days but earlier than thirty-five days
before the date fixed for the poll;
(b) the date for the scrutiny of nominations, which shall be
the second day immediately following the last date for
making nominations or, if that day is a public holiday, the
next succeeding day which is not a public holiday;
(c) the last date for withdrawal of candidature, which shall
be the third day immediately following the date for scrutiny
of nominations or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(d) the date on which a poll shall, if necessary, be taken;
and
(e) the date before which the election shall be completed:
Provided that the Commission may, for reasons which it
considers sufficient, extend, by notification, the date for
completion of any election.]
'[(2) Where the Commission, at any time after the issue, of
the notification under section 42, is of the opinion that it is
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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not possible to hold election on the date or dates so notified
by the State Government under the said section for reasons
which it considers sufficient and justified, the Commission
shall refer the matter to the State Government, and the
State Government shall, on being satisfied with the reasons
shown by the Commission, revoke the earlier notification
and the commission shall consequently revoke the
notification, if any, issued by it under sub-section
(1).]"
16. The proviso to Section 43(1) empowers the Commission to extend the
date for completion of any election by issuing a notification for sufficient
reasons. The extension of the date for completion of any election may or may
not require alteration of the date or dates for holding election fixed by the
State Government under Section 42. In the event, the Commission is of the
opinion that there is sufficient and just reasons for which the elections
cannot be held on the date fixed in the Notification issued by the State
Government under Section 42, then the Commission has to take recourse to
the provisions laid down under Subsection (2) of Section 43 i.e., a reference
is to be made to the State Government in that regard and if the State
Government upon being satisfied with the reasons shown by the
Commission revokes the earlier notification the Commission shall
consequently revoke the notification issued under Section 43(1).
17. This Court is, therefore, of the considered view that alteration of the
date fixed for election cannot be done by the Commission in exercise of its
powers under proviso to Subsection (1) of Section 43. However, if the
Commission, for sufficient reasons, considers to extend the date of
completion of any election without interfering with the date fixed for holding
elections under Section 42, such power of extension of various stages of
WPA (P) Nos. (250 OF 2023, 286 of 2023 AND 287 OF 2023)
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election other than interfering with the date of election can be exercised by
the Commission under the said proviso.
18. Now the question arises whether a writ of Mandamus can be issued to
direct the Commission to exercise its power of extension under Section 43 of
the 2003 Act.
19. Mr. Bandyopadhyay learned Senior Counsel appearing for the State
raised an objection against the maintainability of the writ petitions. He
contended that it is well settled that after commencement of election process
by issuance of the election notification, the jurisdiction of the writ court is
barred.
20. Record reveals that notification under Section 42 of the 2003 Act fixing
the date and hours of poll has been issued on 08.06.2023. It further reveals
therefrom that notification under Section 43 of the 2003 Act was issued on
9th June 2023. It is not in dispute that WPA (P) No. 286 of 2023 and WPA (P)
287 of 2003 were filed after issuance of the election notification.
21. Article 243-O of the Constitution of India commences with the non-
obstante clause. Clause (b) of Article 243-O states that no election to any
Panchayat shall be called in question except by an election petition
presented to such authority and in such manner as provided for by or under
any law made by the legislature of a State.
22. Section 79 of the 2003 Act provides that disputes as to elections can be
raised by filing a petition before the forum and within the time and in the
manner laid down under such provision.
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23. The question therefore crops up is whether the writ Court can entertain
a petition after commencement of the election process and that too at the
intermediate stage.
24. Three Hon'ble judges of the Hon'ble Supreme Court of India in the case
of Election Commission of India through Secretary vs. Ashok Kumar
and others reported at (2000) 8 SCC 216 took into consideration the
decision of the Constitution Bench of the Hon'ble Supreme Court of India in
the case of N.P.Ponnuswami vs. Returning Officer, Namakhal
Constituency, Namakhar Salen District reported at (1952) 1 SCC 94
and another constitution bench decision of the Hon'ble Supreme Court in
the case of Mohinder Singh Gill vs. Chief Election Commissioner
reported at (1978) 1 SCC 405 and summed up the conclusions in
paragraph 32 of the said reports. The Hon'ble Supreme Court in Ashok
Kumar (supra) held thus-
"32. For convenience 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:-
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 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
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progress of the election and facilitates the completion of
the election. 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-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 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 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 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 courts indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for
achieving an ulterior or hidden end. Needless 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."
25. From the propositions of law laid down in the aforesaid reports, this
court is of the considered view that any action taken or orders passed by
authorities vested with the power to conduct election can be made the
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subject matter of judicial review on the ground of mala fide or arbitrary
exercise of power of such authorities if such an approach does not amount
to calling in question an election. However, the invocation of judicial remedy
has to be postponed till after the conclusion of election if the subject matter
of challenge amounts to calling in question an election.
26. In WPA (P) 286 of 2023, the writ petitioner seeks a mandamus to
quash and set aside the notification issued on 9th June 2023 under Section
43 of the Act. An attempt made to set aside the said notification would
amount to calling in question the election. In view of the aforesaid well
settled proposition of law, this Court is not inclined to entertain such prayer
made in the writ petition.
27. For the reasons as aforesaid this Court holds that a Mandamus cannot
be issued at the intermediate stage directing the Commission to extend the
period for filing nominations.
28. It is, however, observed that the discretion to extend the time for
completion of election under proviso to Section 43(1) lies entirely upon the
Commission and this Court leaves such matter to be decided by the
Commission in accordance with law and in the light of the observations
made hereinbefore and also taking note of the submission of Mr. Mitra,
learned Senior Advocate appearing for the Commissioner that the date can
be postpone by one day without disturbing the schedule notified under
Section 42 of the Act.
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29. However, in course of argument, the learned advocate appearing for
the said writ petitioner drew the attention of the Court to the other reliefs
claimed in the said writ petition. One of such relief claimed is to direct filing
of nominations before the Commissioner and/or the District Magistrate of
the concerned district.
30. The learned advocates for the writ petitioners uniformly submitted that
there are instances of prevention of and obstruction to the intending
candidates from making nominations at the specified place.
31. Though the Writ Court may not entertain an approach made to it if it
amounts to calling in question the election, however, a window has been
provided, as would be evident from the aforesaid discussion, to an aggrieved
party to approach the writ court if it is to facilitate the election.
32. The learned advocates for the writ petitioners would contend that such
prayer as well as various other reliefs claimed is to facilitate the election.
33. The issue as to whether there has been prevention of or obstruction to
the intending candidates from making nominations at the specified place is
a disputed question of fact which cannot be decided by way of exchange of
affidavits. Therefore, this Court was not inclined to invite the parties to deal
with such allegations by filing objections thereto. If there is any reasonable
apprehension of prevention of or obstruction to making of nominations, or
there has been any alleged obstruction, the aggrieved party has to take
recourse to the provisions laid down under Subsection 2 of Section 46 of the
2003 Act in the manner specifically provided therein.
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34. Section 46(2) provides that if the Commission, on receipt of complaints
from the intending candidates or the recognized political parties is satisfied
that there is reasonable apprehension of prevention of or obstruction to, the
intending candidates from making any nominations at the place and before
the authority specified under Section 44, the Commission may, by order,
issue a direction to the Panchayat Returning Officer to depute one Assistant
Panchayat Returning Officer at the office of the concerned Sub-Divisional
officer to receive nomination papers within the specified date and hour.
35. The West Bengal State Election Commission is a statutory authority
appointed under Section 3(1) of the West Bengal State Election Commission
Act, 1994 (for short the "1994 Act").
36. It is well settled that a statutory authority can do only what the statute
permits it to do. Such authority can act only in a manner specified in the
relevant statute. Section 46 of the 2003 Act does not empower the
Commission to direct nominations to be filed before the Commission, the
concerned District Magistrate or before any authority other than what has
been specified under Section 46 of the 2003 Act.
37. Section 44 of 2003 Act states that on the issue of the notification under
Section 43 the District Panchayat Election Officer shall in such manner as
may be prescribed give public notice of the intended election inviting the
nomination of candidates of such election specifying the place where the
nominations papers are to be delivered. Thus the public notice of the
election which is required to be issued under Section 44 of the Act has to
specify the place at which the nomination papers are to be delivered. Sub
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section (1) of Section 46 states that on or before the date appointed under
clause (a) of Section 43 each candidate shall either in person or by his
proposer between the hours as may be prescribed, deliver to the Panchayat
Returning Officer, at the place specified in this behalf in the notice issued
under Section 44, the nomination paper completed in the prescribed form
and signed by the candidate and by a voter of the constituency as proposed.
The proviso to Section 46 (1) states that no nomination papers shall be
delivered to the Panchayat Returning Officer on a day which is a public
holiday. The Panchayat Returning Officer in respect of Gram Panchayat and
Panchayat Samity is the Block Development Officer (BDO) and in respect of
Zilla parishad it is the Sub Divisional officer (SDO). Thus the statue
mandates the notification specifying the place at which the nomination
papers are to be delivered. The statute also mandates that the nomination
papers to be delivered in person to the Panchayat Returning Officer at the
place specified in this behalf in the notice issued under Section 44.Therefore
a direction in derogation of the scheme of the Act cannot be issued and if
done it may tantamount to interdicting the election process. Therefore the
prayer sought for by the petitioners to permit filing of nomination before the
District Magistrate of the district concerned or the State Election
Commission is not feasible of consideration.
38. It is also well settled that a Mandamus cannot be issued to compel a
statutory authority to act dehors the provisions of the relevant statute.
Therefore, this Court cannot direct acceptance of nomination papers either
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by the Commission or permit filing of nominations before the concerned
District Magistrate as prayed for by the writ petitioners.
39. It would be relevant at this stage to take note of the proviso to Section
46 of the 2003 Act which empowers the Commission to extend the last date
for making nomination for one day under the contingencies mentioned in
Section 46(2). This Court is of the considered view that an aggrieved person
takes reverse to Section 46 (2), the Commission shall take a decision in
accordance with law.
40. The discretion to extend the time under the proviso to Section 46(2)
lies entirely with the Commission and the Commission being an expert and
independent body is competent to take a decision is that regard. This Court,
therefore, leaves such matter to the discretion of the Commission.
41. The next issue is with regard to the appointment of Observers. The
State Election Commission has submitted that it appoints observers from
senior officers of WBCS (Executives) and IAS cadres and the appointment is
made following the stipulation in Section 134 (1) of the West Bengal
Panchayat Election Act 2003 hereinafter referred to as the 2003 Act. This
response is to the prayer sought for by the writ petitioner in WPA (P) No. 287
of 2023 to appoint a retired judge of this Court as an observer to ensure
conduct of free, fair, transparent and peaceful election to the three tier gram
panchayats in the state of West Bengal. Section 134 falls in Chapter XVI of
the 2003 Act. Sub section (1) of section 134 states that the Commission may
nominate an observer who shall be an officer of the State Government to
watch the conduct of election or elections in the constituency or group of
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constituencies and to perform such other functions as may be entrusted to
him by the Commission. Sub section (2) states that the observer nominated
under Sub section (1) of section 134 shall have the power to direct the
Panchayat Returning Officer for the constituency or for any other
constituencies for which he has been nominated, to stop the counting of
votes at any time before the declaration of the result or not to declare the
same if in the opinion of the observer booth capturing has taken place or at
a large number of polling stations or at places fixed for counting of votes of
many ballot papers used at a polling stations are unlawfully taken out of the
custody of the Panchayat Returning Officer or are accidentally or
intentionally destroyed or lost or damaged or tampered with to such an
extent that the result of the polling at the polling station cannot be
ascertained. Sub section (3) of Section 134 states that where an observer
has directed the Panchayat Returning Officer to stop counting of votes or
not to declare the result, the observer shall forthwith report the matter to
the Commission and thereupon the Commission shall after taking all
material circumstances into account issue appropriate direction. Thus the
statutory provision clearly provides for nominating an observer by the
Commission who shall be an officer of the state government to watch the
conduct of the Elections. The State Election Commission in its report has
stated that the Commission appoints observers from the cadre of the senior
officers of the West Bengal Civil Services and IAS cadres. In our opinion the
exercise to be done by the State Commission being in accordance with the
statutory provision, the court will not be justified in interdicting the same as
the senior officers of the West Bengal Civil Services as well as the officers in
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the IAS cadres are bound to act with due diligence bearing in mind the
purpose for which they have been nominated as observers. As held by the
Hon'ble Supreme Court, the jurisdiction of the High Court under Article 226
of the Constitution to entertain a writ petition challenging the election is not
completely barred. The Bar under Article 243-O (b) of the Constitution, is
not absolute and in such cases where there is gross violation of the
fundamental principles to an election process under the scheme of the
Constitution, the High Court would be competent to exercise the jurisdiction
under Article 226 of the Constitution and pass direction to ensure free and
fair election (K. Venkatachalam Versus A. Swamickan and Anr.1). Thus,
it is not for this court to issue a directions contrary to the statute and in
particular Section 134 of 2003 Act, if done, would be a step amounting to
"calling in question an election" which has been specifically barred by the
decision of the Constitution Bench of the Hon'ble Supreme Court (N.P.
Ponnuswami versus The Returning Officer 2) It has been further held
that mandate of the election Commission is to have free and fair election
maintain its purity Subjective satisfaction arrived at by the Election
Commission on the basis of expert opinion, cannot in a routine manner be
interfered by the courts. Therefore we are of the view that the appointment
of observers from the senior officers of the West Bengal Civil Services
(Executives) and IAS cadres is in consonance with section 134 of the 2003
Act and the same would be sufficient safeguard to achieve the object for
having free and fair elections maintaining its purity. Therefore we see no
(1999) 4 SCC 526
(1952) 1 SCR 218
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reason to accede to the prayer sought for by the writ petitioner to appoint a
retired judge of this court as observer for the ensuring election.
42. The next issue is with regard to the prayer to filing nominations online.
43. Mr. Ritzu Ghoshal learned advocate appearing on behalf of Mr. Abu
Hassan Khan Chowdhury sought for leave of this court to intervene in the
pending public interest litigations filed in connection with conduct of
Panchayat Elections 2023. This court allowed such prayer of Mr. Ghoshal
and he was called upon to advance his arguments on the issues which Mr.
Khan Chowdhury sought to canvas before this Court. After going through
the reliefs claimed by Mr. Khan Chowdhury, it appears that excepting the
issue with regard to filing of online nominations, other issues are similar
and identical to the issues raised in the other public interest litigations.
Therefore, this court shall now decide the issue as to online filing of
nominations in connection with the Panchayat Elections, 2023.
44. Mr. Ghoshal would contend that in order to ensure free and fair
elections and to avoid and/or minimize allegations against prevention of or
obstruction to filing of physical nominations, this court should direct the
Commission to accept online filing of nominations.
45. After hearing the submission of Mr. Ghoshal it appears to this court
that he seeks to take advantage of the advancement in the field of
information and technology and apply the same with regard to filing of
nominations in Panchayat election. The issue as to whether a mandamus
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can be issued directing the Commission to accept nominations in the
electronic form is no longer res integra.
46. A similar issue fell for consideration before the Hon'ble Supreme
Court in the case of West Bengal State Election Commission and others vs.
Communist Party of India (Marxist) and others and three Hon'ble judges of
the Supreme Court of India decided such issue in its decision reported at
(2018)18 SCC 141.
47. The Hon'ble Supreme Court after noticing the provisions laid down
under Section 6 of the Information and Technology Act, 2000 observed that
the Division Bench of the Calcutta High Court noticed the correct position of
law. The observation of the Division Bench of the Calcutta High Court in the
case of Communist Party of India (Marxist) State of West Bengal reported at
(2018) SCC online Cal 1944 is extracted below.
"The State Election Commission has been constituted under
Section 3 of the West Bengal State Election Commission Act,
1994 (hereinafter referred to as the Act of 1994) with
Constitutional sanction. It therefore does not strictly come
within the ambit of Section 6(1)(a) of the Act of 2000 to be a
body or agency owned or controlled by the appropriate
Government. Similarly, the State Government is not called
upon to make rules in terms of section 90 of the Act of 2000
in respect of filing of nomination forms through e-mail."
48. After approving the aforesaid finding of the Division Bench of this Court,
the Hon'ble Supreme Court noticed the provisions of Section 46, 47 as
well as various other provisions of the Panchayat Elections Act and the
Rules framed thereunder and held thus-
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"20. The provisions contained in the Panchayat Elections Act
and rules constitute a complete code in regard to the conduct
of the election, including in the matter of filing of nominations.
Neither the Panchayat Elections Act nor the Rules
contemplate the filing of nominations in the electronic form.
Any reform of the electoral process to permit the filing of
nominations electronically would have to be carried out by a
legislative amendment. The High Court ought not to have
issued a mandatory direction of this nature in the face of the
specific provisions contained in the Panchayat Elections Act
and Rules."
49. Therefore, by applying the ratio decided by the Hon'ble Supreme Court
in the aforesaid reports, this court is of the considered view that a writ of
mandamus cannot be issued directing the Commission to accept
nominations in the electronic form.
50. The next issue is regarding deployment of central para military forces.
It has been stated by the State Election Commission that a meeting on
assessment of deployment of forces was taken by the Commission on
09.06.2023 with the Chief Secretary of the state and the Director General of
Police and an assessment plan by the State will be submitted in due course
which will be reviewed by the Commission for taking appropriate decision.
The petitioner's contention is that to instill confidence in the electorate and
to ensure fair and transparent election without any violence taking place
can be achieved only by deployment of central para military forces. The
petitioner in WPA (P) 287 of 2023 would state that prior to the election to the
Kolkata Municipal Corporation during 2021 and the Municipal Election
conducted in 2022 the State has witnessed large scale violence which has
resulted in various deaths as well. In this regard, the petitioner has relied
upon the various press reports which were reported in leading Dailies
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during February 2022 highlighting the violence which has occurred during
the said elections. It is pointed out that the State Election Commission
during the elections for the Kolkata Municipal Corporation declared 1339
polling centers to be sensitive out of the total polling centers of 4949.
Reference was also made to the judgment of five judges bench of this court
in WPA (P) No. 142 of 2021 etc, batch dated 19.08.2021 which dealt with the
post-poll violence after the assembly elections in the state in the year 2021.
After taking note of the all the facts and circumstances the larger bench
referred the matter to the CBI for investigation wherever allegations are
about murder of a person and crime against women and various directions
were issued. The petitioner had also referred to the various orders passed by
this Court from August 2022 till May 2023 where the court had directed the
central agencies to investigate into the acts of communal violence,
explosions bomb blasts and violence during religious festivals and as many
as ten such orders were referred to. The decision of the Division Bench in
WPA 272 of 2021 dated 10.02.2022 was also referred to which concerned
the municipal elections wherein the court observed that the Election
Commission is vested with the responsibility to ensure free, fair and fearless
elections and to assess the ground situation and to take the decision in
respect of deployment of para military forces if the circumstances so
demand. The court also noted the instances which were pointed out about
the violence during the election and post poll violence on the earlier occasion
during the election in Bidhannagar. In the light of the same, it was observed
that the Election Commission along with the state authorities is required to
be appraised of the ground situation prevailing in Bidhannagar and to take
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a decision to deploy the para military forces if required. Further it was
observed that in case the State Election Commission forms an opinion that
deployment of the para military forces during the Bidhannagar Municipal
Corporation is not necessary, then the State Election Commission will be
personally liable to ensure that no violence takes place and free, fair and
fearless election are held in Bidhannagar. This court also had an occasion to
consider the situation which had arisen during the Hanuman Jayanti
festival and after assigning reasons, directions were issued to requisition the
assistance of the para military forces which order and direction was
complied with by the State. It is not in dispute that a preliminary
assessment has already been made by the State Election Commission and
several districts having been earmarked as "sensitive districts". It has been
widely reported in the press that there have been several instances where
the prospective candidates complained about non availability of nomination
papers which resulted in violence being precipitated and such other
incidents. Considering the fact that the total number of seats for which the
election has to be conducted is more than 75000 and going by the past
incidents wherein on more than 12 occasion the court had to intervene for
directing deployment of central forces or transferring the cases to the
National Investigating Agency, we are of the view that the State Election
Commission should and shall requisition the deployment of central forces to
work in tandem with the police force of the State of West Bengal to ensure
free and fair elections. It is stated in the report that the assessment plan
submitted by the State will be reviewed by the State Election Commission
for taking appropriate decision. The ultimate decision should lie with the
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State Election Commission more particularly when it has been the
consistent submission of the petitioners that there is inadequate police force
for being deployed throughout the state so as to cover all polling stations
especially when the number of seats for which elections are to be held are
more than 75000. Therefore the State Election Commission shall forthwith
send requisition of the deployment for the Central forces at the first instance
for all the areas / districts which in the opinion of the State Election
Commission have been declared as sensitive. Thereafter the State Election
Commission shall review the assessment plan submitted by the state and
wherever there is inadequacy of the state police force in all such areas also
the State Election Commission shall requisition the deployment of para
military forces. This requisition shall be done forthwith by the State Election
Commission and on receipt of the same, the appropriate authority of the
central government shall deploy the required strength without loss of time.
Considering the facts and circumstances we are of the view that the charges
towards such deployment shall be borne by the central government and no
part of it shall be charged to the State of West Bengal.
51. The next issue is with regard to the installation of CCTV cameras at
all polling stations. The State Election Commission in its report has stated
that there are totally 61636 polling stations spread all over the rural areas of
the state. In the last panchayat election, CCTV cameras had been installed
in sensitive booths and during the last municipal elections pursuant to the
orders passed by this Court CCTV cameras were installed in all polling
stations. It is submitted that municipalities are basically urban areas with
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better infrastructure and polling stations were much less in numbers. And
therefore it is logistically not possible to install CCTV cameras in all polling
stations. It needs to be seen as to whether the stand taken by the State
Election Commission is justified. Installation of CCTV cameras has become
an accepted norm for effective surveillance. Therefore to state that it is
logically not possible to install CCTV cameras in all polling stations may not
be fully acceptable. The court is aware of the technical difficulties that may
be involved in the matter of installations of CCTV cameras in all polling
stations with particular reference to polling stations in remote rural areas
and interior villages. Therefore a workable solution has to be arrived at so
that no polling station escape from the surveillance of the State Election
Commission. Therefore we direct the State Election Commission to install
CCTV cameras in all polling stations and only such of those polling stations
where it is technically not feasible to install CCTV cameras, in those stations
alone the entire process commencing from the filing of the nomination
papers till the declaration of the result have to be videographed. In case the
State Election Commission is to requisition the CCTV facility installed by the
police department then the police department should share the link with the
Election Commissioner so that the video footage which have been recorded
and live streamed can be viewed by the State Election Commission and such
recording be saved in the data files for future reference. Further we direct
that in polling stations where there are no CCTV cameras outside the polling
booths such areas especially where the prospective candidates gather for
filing the nominations and the places where the persons assemble for
exercising their franchise, the entire proceedings has to be video graphed
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and the said data be preserved by the State Election Commission. These
directions shall be implemented by the State Election Commission. With
regard to the videography of important events, it has been stated that the
Commission has already ordered for the arrangement to be made for
videography in different stages of election namely filing of nominations,
scrutiny of nominations, withdrawal of candidate and the CCTV surveillance
outside strong rooms after storing of ballot papers and on the date of
counting the entire counting process is to be captured. In this regard the
Commission has referred to the proceedings dated 09.06.2023.While the
step taken by the Commissioner is appreciated, it should be ensured that
the video footages have to be preserved and shall remain in the custody of
State Election Commission and in the event of any eventuality the footage it
is to be viewed by any authority shall be made available to the appropriate
authority in the event of such requirements.
52. With regard to the simultaneous counting, it has been stated that
the Commission orders a single day counting for gram panchayat,
panchayat samities and zilla parishads in a centralized manner and to take
up counting of votes for each tier one by one in that order. It is stated that
this is done for infrastructural reasons as at a venue, number of forms,
tables and number of trained personnel are limited and keeping a view to
avoid overcrowding. We find the reasons given by the Commission for single
day counting to be fair and reasonable and the said decision of the
Commission does not require any interference.
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53. The next issue is with regard to the prayers sought for in the writ
petitions for filing of nomination before the District Magistrate of the
concerned district of the State Election Commission.
54. The next aspect is with regard to deployment of contractual workers in
election work
55. One Mr. Dipankar Rit filed a public interest litigation being WPA (P)
NO. 250 of 2022 praying for a direction not to engage or deploy any
contractual / casual worker/ persons of offices / departments of the State
Government, local bodies and/ or public sector undertakings; Anganwadi
workers working under the ICDS project; para teachers working in
Madhyamik Schools/ Siksha Kendras and civic volunteers or any other
category of contractual or casual worker/persons as polling officers in the
Panchayat Elections 2023.
56. Mr. Sanyal learned counsel appearing for Mr. Rit took this court
through several documents annexed to the writ petition as well as the
supplementary affidavit in order to impress upon this court that in the
past the contractual as well as casual workers have been engaged by the
Commission for the purpose of conducting the elections. In support of his
contention that contractual and casual workers cannot be engaged in any
manner for conducting the elections, Mr. Sanyal placed reliance upon
Sections 26 and 159 of the Representation of the People Act, 1951. He also
referred to a decision of the Hon'ble Supreme Court in the case of Election
Commission of India vs. State Bank of India Staff Association reported at
(1995) Supp (2) SCC 13. Mr. Sanyal also referred to the principles laid down
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in the Handbook for Returning Officer published by the Election
Commission of India (for short "ECI") with regard to the appointment of
polling personnel. He specifically referred to the guidelines incorporated in
the said Handbook falling under chapter 3 more particularly paragraphs
3.1.3,3.1.4 and 3.2.1 in order to highlight as to who can be appointed as
polling personnel and the procedure for such selection.
57. The Representation of People Act 1951 (for short "the 1951 Act") was
enacted to provide for the conduct of Elections of the Houses of Parliament
and to the House or Houses of the legislature of each state, the
qualifications and disqualifications for memberships of those houses, the
corrupt practices and other offences at or in connection with such elections
and the decision of doubts and disputes arising out of or in connection with
such elections.
58. Section 26 of the 1951Act provides for appointment of Presiding
Officers for polling stations. Sections 159(1) thereof states that the authority
specified in subsection 2 shall, when so requested by a regional
commissioner appointed under clause 4 of Article 324 or the Chief
Electoral Officer of the State make available to any returning officer such
staff as may be necessary for the performance of any duties in connection
with an election. Subsection 2 of Section 159 gives a detailed list of the
authorities who are duty bound to make available their staff for election
work.
59. By laying special emphasis on the word "Staff", Mr. Sanyal would
contend that only permanent and regularly appointed staff of the authorities
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mentioned under subsection 2 of Section 159 can be engaged for election
work. In other words, casual or contractual workers , Anganwadi workers,
para teachers, civic volunteers who do not fall within the category of
regular and permanent staff of such authorities cannot be engaged for
election work.
60. The provisions of the 1951 Act have no manner of application to the
conduct of Panchayat elections. Therefore, the guide lines contained in the
Handbook published by ECI cannot be applied to the case on hand as the
same has been framed in the light of the provisions contained in the 1951
Act.
61. Since the issues involved in these public interest litigations is with
regard to conduct of the Panchayat Elections 2023, it would be relevant to
take note of the provisions laid down under the 1994 Act and the 2003 Act
for appointment of Presiding Officer and Polling Officer as the 1994 Act has
been enacted for the conduct of election to the Panchayats and the
Municipalities in the State.
62. Subsection 5 of Section 6 of the 1994 Act provides for appointment of
the requisite numbers of Presiding Officers and Polling Officers. Subsection
5 of Section 6 of the 1994 Act is extracted hereinafter.
"(5) 2 [3 [Subject to the provisions of the West Bengal
Panchayat Election Act, XXI of 2003, and the rules made
thereunder,] the Panchayat Returning Officer shall appoint
such number of persons to be the--
(a) Presiding Officer, and
(b) Polling Officer,
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as may be necessary for holding elections or byeelections to
a Panchayat:
Provided that no person, who has been employed by or on
behalf of, or has otherwise been working for, a candidate in
or about the election or bye-election to a Panchayat, shall be
appointed to be the Presiding Officer or Polling Officer for
holding such election or bye-election, as the case may be."
63. Upon reading the aforesaid provision it is evident that only a person
who has been employed by or on behalf of, or has otherwise been working
for a candidate in or about the election or bye election to a Panchayat
cannot be appointed as Presiding Officer or Polling Officer for holding such
election or bye election.
64. Section 28 of the 2003 Act deals with the appointment of Presiding
Officers and Polling Officers. It also appears from the said provision that
only a person who has been employed by or on behalf of, or has been
otherwise working for, a candidate in or about the election cannot be
appointed as a Presiding Officer or a Polling Officer. It therefore appears to
this Court that there is no statutory bar in appointing persons who do not
suffer the disqualification to be appointed as Presiding Officers or Polling
Offices as laid down under Section 6 of 1994 Act read with Section 28(1) of
2003 Act to be appointed as Presiding Officers and Polling Officers.
65. With regard to appointment of Presiding Officers and Polling Officers in
the ensuing Panchayat Elections 2023, the Commission has filed a report in
Court wherein the relevant portions of the Handbook of the Returning
Officer (Panchayat Election) with regard to selection of Polling personnel has
been referred to. It has been specifically stated in the said report as follows-
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"2. Again, paragraph 11 of Part I of the Handbook of the
Returning Officer (Panchayat Election)stipulates the
conditions as follows:
For the purpose of efficient control of polling personnel and
of economy in expenditure on travelling allowances etc.,
each district, as far as practicable, should use it own
personnel. Vigorous attempts should be made for raising the
requisite number of polling personnel for Panchayat Election
from among employees under the State and Central
government as well as under the Local bodies, Secondary
and Primary Schools and Colleges, as may be made
available by the State Government. Assessment of the
availability of requisite number has to be made well in
advance. The Chief Secretary will be requested by the
Commission to issue instructions to all Heads of
Departments and Offices of the State Govt., Central Govt.,
and Quasi-Government Institutions to furnish to the District
Panchayat Election Officer lists showing the number of
officers and staff in different categories. These lists would
facilitate the task of making suitable selection of polling
personnel. Even then it may not be possible to meet the
requirement of polling personnel from these traditional
sources and the District Panchayat Election Officer may, as
a last resort, deploy with contractual employees, NCC boys,
and Civil Defence volunteers etc. with the approval of the
State Election Commission to meet the shortage. It should be
ensured that such persons are not working for any
candidate or any political party involved in the Panchayat
Election. At least one Government functionary should be
included in each polling party.
Extract of the relevant portion of the Handbook is annexed
as Annexure - II.
The Commission has issued guidelines on appointment of
polling personnel for the ensuing Panchayat General
Elections, 2023 vide No. 204-SEC/3P-15/2023 dated
17.03.2023 (copy enclosed). Annexure - III.
The said guideline stipulates the criteria for selecting polling
personnel as follows:
The polling parties shall be formed with the available
officers and employees of the State Government and the
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Central Government, public undertakings under the State or
Central Government, Municipalities, teaching and non-
teaching staff of Government and Government aided
teaching institutions like Colleges, Higher Secondary,
Secondary and Primary Schools and any other employee
under the rule making authority of the State or the Central
Government. It may please be ensured that every polling
party consists of at least one employee of the State or
Central Government. No one should be appointed as a
member of a polling party, who has been employed by or on
behalf of or has been otherwise working for a candidate in
or about the election. It should also be ensured that no
member of the polling party has his official or residential
address within the Block area where such election will be
held.
It further stipulates that a Presiding Officer may be drafted
from among the officers and employees not below the rank
of an Upper Division Assistant working in the offices of the
State Government and that fourth Polling Officers may be
drafted from the Group-D services.
4. It is pertinent to state that, while drafting polling
personnel of all categories for elections, the permanent
employees of the Government are drafted first. In case there
is a shortfall, contractual employees are drafted for
formation of polling parties after obtaining specific approval
from the Commission. When contractual employees were
engaged in the past, there has been no complaint about
their performance in poll duty.
Some such incidences of approval by the Commission in
past elections are enclosed herewith and annexed together
as Annexure - IV.
5. There is no statutory bar in the Acts, Rules and in the
Handbook concerned in drafting
contractual employees for election duty."
66. In view of the provisions laid down under the 1994 Act read with the
2003 Act with regard to appointment of Presiding Officers and Polling
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Officers, this court is of the considered view that persons who do not suffer
any disqualification for appointment as Presiding Officers and Polling
Officers as specifically provided under Section 6 of the 1994 Act read with
Section 28(1) of the 2003 Act can be appointed as Presiding Officers and
Polling Officers.
67. This Court, therefore, directs the Commission to keep in mind the
provisions laid down under the 1994 Act and the 2003 Act for appointment
of Presiding Officers and Polling Officers as well as the stand taken by the
Commission as indicated in its Report filed in Court.
68. With regard to deployment of contractual employees and NCC boys,
the Handbook states that they will be deployed as a last resort. However, the
Handbook further states that the Fourth Polling Officer may be drafted from
Group D Officers. Thus, it goes without saying that if contractual employees
and NCC boys are to be deployed they are to be deployed to undertake work
lower than they work assigned to the Fourth Polling Officer and not assigned
any duties above the Fourth Polling Officer.
69. By relying upon Section 7 of 1994 Act, Mr. Sanyal would vehemently
contend that the persons employed for election work has to be regular and
permanent staff.
70. Section 7 provides for appointment of staff of the Commission that
may be necessary for the discharge of the functions conferred upon it by
Section 4(1) and 5(1) of the 1994 Act. Section 7 has no manner of
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application in case of appointment of Presiding Officers and Polling Officers
for which specific provision has been laid down under Section 6(5) of the
1994 Act read with Section 28(1) of the 2003 Act.
71. In State Bank of India Staff Association (supra), the issue that fell for
consideration was whether the employees of the State Bank of India can be
requisitioned for election duty in the Parliamentary and Assembly Elections.
The Hon'ble Supreme Court after taking into consideration the provisions of
Section 159 as it then stood held that the services of the Officers of the State
Bank of India cannot be requisitioned in the absence of such power under
1951 Act. The issue involved in these public interest litigation is with regard
to appointment of Presiding Officer and Polling Officers for Panchayat
Elections which is guided by the 1994 Act and the 2003 Act and, therefore,
the said decision has no manner of application to the facts of the case on
hand.
72. With regard to engagement of civic volunteers in the election work it
would be relevant to take note of the circular issued vide memo no. 50/IGP
Welfare dated 24.03.2023 issued by the Inspector General of Police
(Welfare) wherein the duties that may be entrusted to a civic volunteer has
been specifically laid down in the said circular. The relevant portion of the
said circular is extracted herein below.
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"WEST BENGAL POLICE DIRECTORATE
BHABANI BHAVAN, ALIPORE
KOLKATA-27
CIRCULAR
In terms of the order dated 21.03.2023 of Hon'ble High Court,
Calcutta passed in connection with W.P.A. No. 25216 of 2022 in
the matter of Kanchan Sharma -Vs- Union of India and Ors., you
are again apprised that Civic Volunteer Force is set up to assist
police for the following purposes:-
I. They will assist Police in respective units for traffic
management.
II. They will assist Police in major festivals.
III. They will assist Police regarding unauthorized parking of
vehicles.
IV. They will assist police in ensuring public safety.
V. Any other duties/responsibilities relating to public assistance
to be assigned by respective heads of unit.
A Civil Volunteer cannot be entrusted with any law enforcement
duties.
In view of the above, you are requested to abide by the Court's
Order by letter and spirit.
A copy of the order of Hon'ble High Court, Calcutta mentioned
above and G.O. No. 4129-PL/PB/3P-29/11 dated 26.09.2011
regarding guidelines for eligibility, mode of induction, training,
duties and termination of voluntary services e.t.c. for Civil Police
Volunteer Force is enclosed herewith.
Inspector General of Police, (Welfare)
West Bengal
Memo No. 50/IGP Welfare Dated 24/03/2023"
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73. In view of the circular being issued by the competent authority of the
West Bengal Police Directorate, this Court directs the Commission not to
entrust to a civic volunteer any duties dehors the said circular. In case the
Commission decides to engage the civic volunteers for discharging any
duties with regard to the conduct of the Panchayat Elections only such
duties as indicated in the said circular can be entrusted to such volunteers.
74. The next aspect which has been focused by the interveners is to
ensure protection of the lives and limbs of the polling officers and polling
personnel in the ensuing election. It is stated that in the panchayat election
held in the year 2018 on 14.05.2018 one Raj Kumar Ray a teacher from
Uttar Dinajpur was assigned the duty as Presiding Officer was found
missing and on the next day his mutilated body was found with some
injuries on the railway track. This led to several applications being made to
the competent authorities before the general election in West Bengal
conveying the grievances and demanding adequate security measure to the
polling officers and polling personnel in the state of West Bengal. In this
regard the Sikhshanuragi United Association, Balichak represented by its
Secretary has sent a representation to the Commission requesting to provide
adequate security measures to the polling officers and the polling personnel
in West Bengal and the grievance of the petitioner is that till date no steps
have been taken in this regard. It is stated that in the year 2018 panchayat
election, large scale violence took place resulting in 13 deaths, bombs being
hurled, ballot boxes being burned and all these occurred due to inadequate
security arrangements. In the general election 2019, 693 instances of
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political violence was reported and 11 deaths. Further it is stated that state
witnessed huge violence during the assembly election 2021 including 15000
cases of post-poll violence and also cases of violence during and after the
West Bengal Municipal Election 2022. It is stated that the association is a
registered body under the West Bengal Societies Registration Act, 1961 and
it is united forum of teachers and teaching staff and they have come forward
conveying their grievances and demanding adequate security measures to
polling officers and polling personnel. The association apprehends violence
in the ensuing election and they are more concerned about the safety and
security of the polling officers and polling personnel. In the earlier part of
this order at the first instance in all the district which have been classified
as sensitive by the Commission, we have directed requisition of paramilitary
force and on an appraisal being done in respect of the other areas and
wherever violence is anticipated directions have been issued to Commission
to requisition the required para military forces and coupled with the
direction to provide the same at the cost of the central government Therefore
we are of the view that the said direction will adequately protect the interest
of the polling officer and polling personnel. It goes without saying that the
State Election Commission should undertake all steps to ensure that the
safety and security of the polling officers and polling personnel. All
preventive measures shall be taken by the Commission and standard
operating procedure can be devised to be implemented in all the polling
stations throughout the state. In the event if in a particular polling station
central force has not been deployed then it shall be the responsibility of the
state police to ensure the safety and security of the polling officers and
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polling personnel at such polling stations. Therefore there will be a direction
to the Commission to ensure the safety and security of the lives of the
polling personnel and polling officers and in the event of any complaint
being brought to the notice of the Commission, swift action be taken and the
persons who are indulging in violence should be severely dealt with. This
direction be complied with in letter and spirit without giving any room for
laxity.
(T.S. SIVAGNANAM, CJ.)
(HIRANMAY BHATTACHARYYA, J.)
(P.A- PRAMITA/SACHIN/SANCHITA)
