Calcutta High Court (Appellete Side)
Suvendu Adhikari And Anr vs Rajiva Sinha on 13 October, 2023
CPAN NOS (831 OF 2023 AND 948 OF 2023)
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
RESERVED ON: 11.10.2023
DELIVERED ON: 13.10.2023
CORAM:
THE HON'BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE UDAY KUMAR
CPAN/831/2023
SUVENDU ADHIKARI AND ANR.
VERSUS
RAJIVA SINHA, STATE ELECTION COMMISSIONER
In
WPA(P)/250/2023
SRI DIPANKAR RIT
VERSUS
STATE OF WEST BENGAL AND ORS.
In
WPA(P)/286/2023
ADHIR RANJAN CHOWDHURY
VERSUS
THE WEST BENGAL STATE ELECTION COMMISSION AND ORS.
In
WPA(P)/287/2023
SUVENDU ADHIKARI AND ANR.
VERSUS
Page 1 of 26
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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STATE OF WEST BENGAL AND ORS.
In
WPA(P)/301/2023
SUVENDU ADHIKARI AND ANR. VS STATE OF WEST BENGAL AND ORS.
With
CPAN/841/2023
ABU HASAN KHAN CHOUDHURY VS RAJIVA SINHA
With
CPAN/905/2023
DIPANKAR RIT
VERSUS
RAJIVA SINHA AND ORS.
With
CPAN/907/2023
SANMOY BANERJEE
VERSUS
RAJIVA SINHA AND ORS.
With
CPAN/948/2023
In
CPAN/831/2023
In
WPA(P)/301/2023
SUVENDU ADHIKARI AND ANR.
VERSUS
RAJIVA SINHA STATE ELECTION COMMISSIONER AND ORS.
Appearance:-
Mr. Soumya Majumder, Adv.
Mr. Srijib Chakraborty, Adv.
Mr. Kabir Shankar Bose, Adv.
Mr. Anish Kumar Mukherjee, Adv.
Page 2 of 26
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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Mr. Suryaneel Das, Adv.
Mr. Amit Kumar Mishra, Adv.
Mr. Chiranjit Pal, Adv.
..for the Petitioners in
(CPAN 831 of 2023 and CPAN 948 of 2023)
Mr. Lokenath Chatterjee, Adv.
Mr. Sukanta Ghosh, Adv.
Mr. Arghya Chatterjee, Adv.
..for the Petitioners in
(CPAN 905 of 2023 and CPAN 907 of 2023)
Mr. Mrityunjoy Chatterjee, Adv.
Mr. Debapriya Majumder, Adv.
..for the Petitioner in
CPAN 841 of 2023.
Mr. P. S. Raman, Sr. Advocate
Mr. Kishore Datta, ld. Senior Advocate,
Mr. Jishnu Sinha, ld. Senior Advocate,
Ms. Sonal Sinha, Adv.
Mr. Avishek Prasad, Adv.
Mr. Sayan Dutta, Adv.
..for W.B. State Election Commission.
Mr. Ashoke Kumar Chakrabarti, learned ASG,
Mr. Billwadal Bhattacharyya, learned DSGI,
Mr. Ayanabha Raha, Adv.
Mr. Tirtha Pati Acharya, Adv.
..for the Union of India.
Mr. Sirsanya Bandopadhyay, Adv.
Mr. Piyush Agarwal, Adv.
Mr. Arka Nag, Adv.
Ms. Utsha Dasgupta, Adv.
Ms. Shrivalli Kajaria, Adv.
Ms. Riddhi Jain, Adv.
..for the State.
Mr. Bikram Banerjee, Adv.
Mr. Sudipta Dasgupta, Adv.
Mr. Sagar Dey, Adv.
... for the Intervenor in WPA(P) 287/2023
Page 3 of 26
CPAN NOS (831 OF 2023 AND 948 OF 2023)
REPORTABLE
JUDGMENT
(Judgment of the Court was delivered by T.S. Sivagnanam, CJ.)
1. The alleged contemnor in CPAN No. 831 of 2023 is Mr. Rajiva Sinha, the
State Election Commissioner of West Bengal. In CPAN No. 948 of 2023, the
alleged contemnors are Shri Rajiva Sinha, the State Election Commissioner,
Shir Hari Krishna Dwidi, Chief Secretary, Government of West Bengal, Shri
B.P. Gopalika, Principal Secretary, Department of Home and Hill Affairs,
Government of West Bengal and Shri Manoj Malaviya, Director General and
Inspector General of Police, West Bengal.
2. CPAN No. 831 of 2023 has been filed alleging willful and deliberate
violation of the judgment and order dated 15.06.2023 in WPA (P) No. 301 of
2023. CPAN No. 948 of 2023 has been filed alleging willful and deliberate
violation of the judgments and orders dated 21.06.2023, 23.06.2023,
28.06.2023, 03.07.2023 and 06.07.2023 passed in CPAN No. 831 of 2023 as
well as the judgment and order dated 15.06.2023 in WPA (P) No. 301 of 2023.
The contempt petition was heard on various dates and orders were passed from
time to time. The first order was passed on 21.06.2023, the following
observations were made:-
3. After elaborately hearing the arguments of the learned
counsel for the parties, we have no hesitation in our mind to
hold that the order and direction has not been complied with
in its letter and spirit. We fail to understand as to why the
State Election Commission is still not taking any independent
decision in the matter and the learned senior counsel for the
State Election Commission on instruction stated that the
Election Commission will abide by the directions issued by
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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this Court. In the first order passed by this Court, the Court
reposed confidence on the State Election Commission and
directed to make an assessment of the sensitive Districts but
we found that this direction has not yet been taken and the
matter was being dragged which necessitated the Court to
issue direction for deployment of the Central Forces for the
entire State which order has also been affirmed by the
Hon'ble Supreme Court. On instructions, the learned senior
advocate for the State Election Commission submitted that
"one Company of the Central Force has been requisitioned for
each of the 22 Districts". It is submitted by the learned
advocate for the petitioners that one Company consists of 80
active persons and the total number of such personnel of the
Central Force would be 1700, which in our view is thoroughly
inadequate. We are justified in taking such stand in the light
of the requisition which was made for deployment of Central
Forces during the Panchayat Elections conducted in the State
of West Bengal in 2013. In this regard, we refer to the
decision of the Hon'ble Supreme Court in the case of West
Bengal State Election Commission Vs. State of West Bengal
and others reported in (2013) SCC on line 1283. It is
interesting to note that the State Election Commission was
the petitioner before the Hon'ble Supreme Court resisting the
decision of the State of West Bengal in the matter of
deployment of Central Forces for the year 2013 Panchayat
Election. If that was the manner in which the State Election
Commission had acted in the year 2013, we are at a loss to
understand as to what has happened to the independency
and supremacy of the State Election Commission during the
ensuing election. In the said order of the Hon'ble Supreme
Court it has been recorded that the Panchayat Election 2013
was to be conducted in five phases from 11th July to 25th
July, 2013 and interestingly deployment of State Police was
1,05,000 and Central Forces was 82,000 and, more
particularly, at the relevant point of time there were only 17
Districts in the State of West Bengal as against 22 Districts
at present. Therefore, if the State Election Commission is not
pro-active and not inclined to implement the order passed by
this Court in its letter and spirit, we are of the prima facie
opinion that the State Election Commission is attempting to
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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make the orders passed by this Court unworkable to which
they are not entitled to, more particularly, when the Hon'ble
Supreme Court has affirmed the order. This will also lead us
to a prima facie conclusion that there has been deliberate
violation of the order and direction which was directed to be
complied with in its letter and spirit. In the light of the
submissions made by the learned senior counsel for the State
Election Commission that the Commission will abide by the
directions issued by this Court, we are inclined to issue the
following directions which are ancillary and supplementary
to the orders passed in the earlier two writ petitions.
4. The State Election Commission shall within 24 hours
requisition sufficient number of Central Forces to be deployed
to all the Districts and the number of Companies/Battalion
which are to be requisitioned shall be not less than the forces
which was requisitioned for the 2013 Election and it has to
be definitely more than the same as the number of Districts
have increased and the Electorate would have definitely
increased between 2013 and 2023, in these ten years.
Therefore, we expect that the State Election Commission to
take note of this direction in a proper and effective manner
and this Court hopes that the direction will be complied with
in its letter and spirit and any attempt to make the order
unworkable may result in adverse consequences.
5. It is pointed out by the learned counsel for the petitioners
that in the Special Leave Petition filed before the Hon'ble
Supreme Court, a copy of the letter addressed by the
Additional Chief Secretary, Home and Hill Affairs
Department, Parliamentary Affairs Department, Government
of West Bengal, to the Principal Secretary, Department of
Home Affairs and Justice, Government of Punjab dated
12.06.2023 was annexed. On going through the letter, we
are surprised to note that the requisition which was made to
the Government of Punjab was to provide Police Force to
reach the designated location by 6th July, 2023 morning.
When the submissions on behalf of the State Election
Commission was heard by this Court in the writ petition, we
were led to believe that already sufficient number of Force
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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has been requisitioned from the State of Odisha, Jharkhand,
Bihar, Punjab and Tamil Nadu. The Court was of the view
that such requisition has been made and the Forces are
required to be present till the entire election process is
completed. Surprisingly, the instructions given to the learned
Senior Counsel for the State Election Commission is contrary
what has been written by the Additional Secretary to the
Government of West Bengal, to the Principal Secretary,
Department of Home Affairs and Justice, Government of
Punjab dated 12.06.2023. This also appears to be an
attempt to mislead the Court as the Court even in the order
passed in the earlier writ petition had made it clear that the
requisition of Central Forces was to cover the entire Election
Process not on the date of polling alone.
6. Therefore, we are of the view that such deployment of the
Forces from other States to be in place on the date of polling
will not yield the desired result. Therefore, de hors the
number of Police Forces which may have been requisitioned
from other States, the State Election Commission shall
independently assess the requirement and as observed
earlier the assessment should be honest and bearing in mind
that the State Election Commission has constitutional
obligation to ensure free and fair election and to preserve the
purity of the entire Election Process. We hope and trust that
the directions be complied with effectively and immediately
without loss of time.
3. A reading of the above paragraphs will show that the court was of the
opinion that the order and direction issued in the writ petition has not been
complied with in its letter and spirit. To be noted this order was passed in
CPAN No. 831 of 2023. On the next hearing date namely 23.06.2023, the court
took note of the orders passed by the Hon'ble Supreme Court dated 20.06.2023
dismissing the special leave petitions filed by the State and the State Election
Commission as against the orders passed in the writ petition and took note of
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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the submissions made by the learned Senior Counsel and the following
observations/directions were issued:-
13. After we have heard the submissions on behalf of the
learned advocates appearing for the parties, we are of the
view that in order to decide as to whether there has been any
wilful non-compliance of the directions issued by this court in
its order dated 15.06.2023 which, in fact, was ancillary and
supplementary to the earlier order dated 13.06.2023, we are
of the view that affidavit needs to be filed by the State
Election Commission. The crucial question would be as to
whether the submission made on behalf of the State Election
Commission that there is no willful delay on the part of the
Commission as they have complied with the orders on
22.06.2023, soon after the Special Leave Petition filed by
them was dismissed by the Hon'ble Supreme Court on
20.06.2023.
14. The question would be as to how the delay has to be
computed as observed in the order dated 15.06.2023, the
said order was in continuation of the earlier order dated
13.06.2023 in which also timelines were fixed. Therefore,
the order dated 13.06.2023 for all purposes stands merged
with the order dated 15.06.2023 and both these orders
stand merged with the order passed in this contempt
application dated 21.06.2023. Therefore, the court has to
consider the cumulative circumstances to examine the
conduct of the State Election Commission as to whether there
was any willful disobedience of the order and directions
issued from time to time or was there any attempt to make
the order unworkable at different stages of time.
15. This issue cannot be decided without an affidavit being
filed by the State Election Commission. So far as the
direction issued to the Central Government is concerned, we
find the same has been complied with pursuant to the
requisition made by the State of West Bengal and in the
assessment of the Ministry of Home Affairs 315 Companies
would be adequate and it is higher than what was provided
in the 2013 Panchayat Election which we had indicated in
our order dated 21.06.2023. 7
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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16. Needless to state, as emphasised by this court time and
again that it is the assessment of the State Election
Commission which is paramount. In fact, the court used the
expression that the State Election Commission should make
an honest assessment. Therefore, if, according to the State
Election Commission, 315 Companies as deployed by the
Central Government is not adequate, then the State Election
Commission shall not fight shy to make additional requisition
to the Central Government. This observation is made after
taking note of the submissions made on behalf of the State
Election Commission that the Commission will do all within
its means to ensure free and fair election and to preserve the
purity of the election process. It was also submitted on
behalf of the State Election Commission that individual
grievances are before this court being heard and decided by
the learned Single Benches. However, we have pointed out
to the learned senior advocate appearing for the appellant
that even today before the regular court there were two writ
petitions which were filed as public interest litigations and in
one of those writ petitions it was reported that 273 seats in
Canning-I Block have remain uncontested and it is
voters/public who have come to court to state that they have
right to choose the candidate and a prospective candidate
cannot be prevented from filing the nomination that the State
Election Commission has not taken any pro-active step in this
regard. A direction has been issued in the said writ petition
to the State Election Commission for their response. Even the
totality of circumstances and that not only the Regular Bench
of this court but two Single Benches and one another Division
Bench or all being engaged in matters concerning in the
ensuing Panchayat Election.
17. Therefore, we are of the view that strict monitoring is
required to be done in the matter for which affidavit has to be
filed after which the court will consider as to whether there
has been willful disobedience of the directions issued by the
court in all the three orders and such other matters. With
regard to the appointment of Observers are concerned, since
the court in its initial order in the first order dated
13.06.2023 declined to accede such a prayer and in the
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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present proceedings a prayer has been made to renew the
said prayer, such a request can be considered only after an
affidavit is filed by the State Election Commission in this
regard.
18. We expect the State Election Commission to answer to
the prayer on merits without raising any technical objection
in this regard as we have observed that the orders passed
by the court from time to time are incidental and ancillary to
each other and the object behind passing such order is to
ensure free and fair election and to preserve the purity of the
election process.
19. We direct the State Election Commission to file their
affidavit covering all the above aspects by 27.06.2023.
20. Let the matter be listed on 28.06.2023 at 2.30 p.m.
4. To be noted that the above order was passed in CPAN No. 831 of 2023. On
the next hearing date that is on 03.07.2023, CPAN No. 841 of 2023 was listed
along with CPAN No. 831 of 2023 and certain directions were issued with
regard to the deployment of contractual employees for election duty etc. When
the matter was next heard on 06.07.2023 on which date, the State Election
Commission was to respond to the allegations, the court also took into
consideration the submissions made by the Learned Additional Solicitor
General with regard to the manner in which the State Election Commission
was functioning causing inconvenience to the central forces. Taking note of the
submissions on either side, the following observations/directions were issued
in the order dated 06.07.2023 which is to the following effect:-
14. As this court has been time and again pointing out that
duty cast upon the constitutional body, namely, the SEC is to
ensure free and fair election and to protect the purity of
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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election. The election process would stand concluded only
after the publication of the results. So therefore, until then
the SEC should ensure that all is done to prevent any
complaints from any corner and it goes without saying the
safety and security of the receiving stations where the ballot
boxes will be kept after it is being received from the
respective polling stations and also during the counting
process and till the declaration of the results. Therefore, the
officers of the SEC shall hold discussion with the Inspector
General, BSF, the State Nodal Officer with regard to the
deployment of the Central Forces while ballot boxes are being
transported to the receiving stations to safeguard the ballot
boxes in the receiving stations and when the counting takes
place and also till the results are declared. Clear plan of
action be chartered out in this regard and the advice given by
the Inspector General, BSF, the State Nodal Officer shall be
taken into consideration so that the deployment and other
aspects goes on seamlessly.
16. Therefore, this court has considered the said aspect and
examined as to what directions have to be issued. It is not in
dispute that there were large scale post poll violence soon
after the earlier Panchayat Election as well as the election of
the Legislative Assembly. Though it may not be right for the
court to predict any such violence soon after the ensuing
elections, yet the apprehension in the minds of the applicant
cannot be brushed aside. As observed by this court in its
earlier orders, it is the electorate which needs to be protected
and soon after the elections and declaration of the results if
any violence erupts it is the public will be affected.
Therefore, this court is of the view that the Central Forces
shall continue to remain in the State of West Bengal for a
period of ten days from the date on which the results are
declared and in this regard the Ministry of Home Affairs,
Government of India shall issue necessary orders and
instructions to the State Nodal Officer, namely, the Inspector
General, BSF. All other subsidiary issues which are being
brought to the notice of the SEC or to any of the control rooms
which have been established throughout the State or to any
of the Observers who have been nominated by the SEC, the
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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same shall be taken serious note of and examined and
appropriate steps be taken to redress all such genuine
grievances. All that the court can hope is that the elections of
the Panchayat to be held on 8th July, 2023 is peaceful and
the public will be entitled to cast their vote without any fear
in their mind.
17. It is pointed out by the learned Deputy Solicitor General
that the Commission by communication dated 04.07.2023
has given district wise plan for deployment of companies of
the Central Forces. The number of companies to be deployed
have been mentioned in the said communication. As
observed earlier the arithmetics has to be left to be done by
the expert and we have entrusted the said exercise to be
done by the Inspector General, BSF, the State Nodal Officer
who will undoubtedly ascertain the views of the Commission
and also that of the State Police.
5. The matter was thereafter heard on 12.07.2023 and the report submitted
by the Inspector General, BSF, Force Coordinator was taken on record and on
perusal of the report, the court found very serious allegations have been made
against the State Election Commission and in several places in the report it has
been stated that the support and response of the State Election Commission
and the state authorities was on a number of occasions was wanting. The court
observed that if the allegations set out in the report ultimately turn out to be
true then it would tantamount to clear case of willful disobedience of the orders
and directions issued by this court. The court made it clear that these are all
prima facie observations made by the court as the court will take a decision
after the State Election Commission files the response to the report of the IG,
BSF. The court also noted that there are allegations against the State
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Government of non-cooperation etc. The relevant portions of the order are
hereunder:-
In the earlier part of this order we have pointed out that
the allegations made in the report submitted by the
Inspector General, BSF are very serious and damaging.
Therefore, before we take a decision we expect proper
response from the State Election Commission to all the
allegations made in the report as well as the appropriate
authority of the State Government.
6. The matter was thereafter heard on 26.07.2023 on which date the affidavit
filed by the State Election Commission as well as the State Government was
taken on record and liberty was granted to file exception to the affidavit/report.
The matter was thereafter heard on 22.08.2023 on which date the court took
into consideration the submission made by the learned Additional Solicitor
General. From 24.08.2023, the court commenced the hearing of the
submissions of learned Senior Counsel appearing for the applicants in the
contempt application. In the order dated 05.09.2023, the court took note of the
submission of the learned Senior Counsel for the applicant placing reliance on
Rule 19 of the Calcutta High Court Contempt of Court Rules, 1975 (The Rules)
and submitted that the Rule contemplates three scenarios, the first of which is
that the court may issue Rule NISI or summarily reject the petition or make
such order thereupon as thought fit. The submission of the learned Senior
Advocate was that the earlier orders passed in the contempt application were in
the nature of the third scenario or in other words the third limb of Rule 19 and
presently the court has to consider and issue rule as per the first scenario
CPAN NOS (831 OF 2023 AND 948 OF 2023)
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provided for under Rule 19. In this regard, Form No. 1 Appendix 1 to the Rules
was referred.
7. Further it was submitted by the learned Senior Counsel that on going
through the response filed by State Election Commission, it is seen that the
same is the mere denial and the response is absolutely vague and it
tantamounts to saying as if nothing has happened for initiation of contempt.
Serious objection was taken to the exception filed by the State Government
more particularly, in paragraph 11 and it was submitted that the State
Government could not have stated that the deployment of the CAPFs/SAPs had
been undertaken pursuant to the orders passed by the court from time to time
and the purported challenge faced by IG, BSF in implementing the orders
passed by the court have no relevance for the purpose of the report. It was
submitted that such a statement could not have been made by the State
Government and ought not to have been made. During the course of his
submissions, the learned Senior Counsel for the petitioner contended that the
respondent/alleged contemnors are not required to be heard in the matter for
the purpose of the court deciding as to whether, Rule NISI has to be issued in
terms of Rule 19. However, we had opined and passed an order that the
respondents will be heard and they will be afforded an opportunity. In support
of his contention, learned Senior Counsel placed reliance on the decision in
Heinz India Private Limited and Others Versus Glaxoo Smithkline
Consumer Healthcare Limited 1 . Subsequently the matter was heard on
(2005) SCC Online Cal 429 (DB)
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22.09.2023 on which date the learned Senior Counsel for the petitioner
concluded his submissions.
8. On 11.10.2023, we have heard the submissions of Mr. P.S Raman, the
learned Senior Advocate of State Election Commission and the submissions of
the learned Advocate General for the state.
9. The basis of the orders passed by the court from time to time was to
ensure free and fair elections to be conducted in the state to ensure that the
State Election Commission discharged its duties and responsibilities with the
aid of the state machinery and to ensure that the same is effectively
discharged. The directions were issued for timely action by the State Election
Commission as timely action was heart of the matter in an election process
which had already commenced. For the court to satisfy that Rule has to be
issued, the court has to consider whether there was any attempt to frustrate
the object of the directions issued by the court from time to time both in the
writ petitions. Whether the compliance which has been reported by the State
Election Commissioner in their response to the report of the IG, BSF, Force
Coordinator was a mere eye wash to show as if there has been an compliance.
Was there inaction on the part of the State Election Commission and if so, was
the inaction deliberate and willful and lastly whether the representations which
were made by the State Election Commission were true and correct.
10. In the previous paragraphs of this order, we have extracted the various
observations which were made from time to time. In writ petition namely WPA
(P) No. 301 of 2023 dated 15.06.2023, the inaction on the part of the State
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Election Commission was flagged and the court observed that the action of the
State Election Commission should be considered to be deliberate violation of
the order and direction issued in the earlier writ petitions which orders were
supplementary and ancillary to the orders passed in the subsequent writ
petitions.
11. At every stage of the matter, the State Election Commission had been
dragging its feet without any precise and concrete steps being initiated and this
was noted in the order passed in the writ petition dated 15.06.2023 in
paragraph 11 after taking note of the minutes of the meeting convened by the
State Election Commission on 09.06.2023 with the Chief Secretary,
Government of West Bengal and Director General of Police, West Bengal and it
was submitted that necessary arrangements have been made to comply with
the directions of the court in the earlier writ petitions and it may take few days
to identify the sensitive areas. The following findings were recorded in the said
order after elaborately considering the submissions of the learned Advocates for
the parties:-
After we have elaborately heard the learned advocates
for the parties and carefully considered the materials
placed by the State Election Commission, it is clear
that the State Election Commission has not taken any
proactive and diligent steps with a view to implement
the directions issued by this Court in the earlier writ
petition in its letter and spirit. We say so because in
the minutes of the Meeting dated 9.06.2023 convened
by the Commission with the Chief Secretary and the
Director General of Police with regard to the
identification of the sensitive areas from law and order
point of view it has been stated that the District
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Magistrates and Superintendent of Police have initiated
the process of identification of sensitive areas from law
and order point of view. Though such was the decision
was on 09.06.2023 till today, (15.06.2023) such
identification has not been made. This is clear from the
communication sent by the State Election Commission
to the Chief Secretary, Government of West Bengal
dated 14.06.2023 wherein it is stated the Chief
Secretary has been requested to submit assessment
plan and deploy of forces for the ensuing panchayat
general election at the earliest so as to enable the
Commission to further necessary action in the matter.
Thus it is seen that more than 5 days no action had
been initiated and no assessment plan has been
submitted to the Commission which clearly shows that
there is a slackness on the part of the administration in
promptly reporting by identification of sensitive areas
from the law and order point of view. In fact it is the
submission made on behalf of the Commission today
that it may take a few more days for the identification
of the sensitive areas. This in our view is not
appreciable because of the fact that today (15.06.2023)
is the last date for filing of nominations and the next
will be a crucial event where the last date of
withdrawal of nomination have been fixed.
Therefore, considering the sensitivity of the problem,
the Court in the earlier writ petition had directed the
State Election Commission to forthwith requisition the
Central forces. However, the matter has been dragged
on and we find that the State authorities have not
extended the due support though a decision was taken
as early as 09.06.2023 for identification of the
sensitive areas from law and order point of view.
Therefore, we are of the view that we will be well
justified to issue appropriate directions which to our
mind is absolutely essential in order to ensure free and
fair elections. We wish to emphasize that a direction in
this regard is required to be issued bearing in mind the
electorate, the people of West Bengal, who will exercise
their franchise in the ensuing election.
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12. Ultimately in paragraph 16, it was held as follows:-
In the light of the observations in the preceding paragraphs
and also taking note of the fact that no appreciable steps
have been taken ever since the order was passed in the
earlier writ petitions and till date no effective steps have been
taken to identify sensitive areas from law and order point of
view and in the light of the submission on behalf of the
commission that it may take a couple of more days to do so,
we are of the view that waiting any longer will cause more
damage to the situation and will not aid in protecting the
purity of the election process.
In the result, this writ petition is disposed of by directing the
State Election Commission to requisition the deployment of
Central Forces for all Districts in the State of West Bengal
and this direction shall be complied with by the State
Election Commission within 48 hours from the date of the
receipt of the server copy of this order. On receipt of the
requisition the appropriate authority of the Central
Government shall deploy the required number of Central
Forces and the cost to be borne by the Central Government
and no part of it to be charged to the Government of West
Bengal. The State Election Commission shall issue a circular
that all officers who have been assigned for election duty
shall display their identity cards prominently and whenever
any of the observers or any authority calls upon to prove
their identity, they should readily and immediately produce
their identity card and establish their identity. With the
above observation the writ petition stands disposed of. No
costs.
13. The writ petition was disposed of on 15.06.2023 directing the State
Election Commission to requisition the deployment of central forces for all the
districts in the State of West Bengal and the directions to be complied with by
the State Election Commission within 48 hours from the date of the receipt of
the server copy and several direction were issued as to what is required to be
done by the Central Government on such request by the State Government
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making it clear that the cost of such deployment should be borne by the
Central Government and no part of it to be charged to the Government of West
Bengal. Though such was the order passed in 15.06.2023 which required the
State Election Commission to requisition the central forces within 48 hours,
the first requisition was made only on 20.06.2023.In the various orders it has
been clearly brought on record that this requisition was for the minimum
number which was grossly inadequate and therefore we are of the view that the
State Election Commission has sought of feigned compliance of the directions
and to make believe as if the order has been complied with. This is in our view,
would be a deliberate violation of the order or in other words their action to
make the order passed in the writ petition unworkable. It is no doubt true that
the State Election Commission and the State Government preferred appeal to
the Hon'ble Supreme Court, however in the interregnum no prayer was made
before the court for extension of time for compliance of the directions which
was directed to be made within 48 hours. Therefore, the requisition of 22
companies of central forces at the first instance has done by the State Election
Commission cannot be construed to be compliance of the order as the State
Election Commission was fully aware that the 22 companies of central forces
will be grossly inadequate to take care of the Panchayat elections in the entire
State of West Bengal. This again is an act of contempt. This also brings to light
that the State Election Commission did not make a proper assessment or was
it a deliberate attempt to make an under-assessment just to hoodwink the
Court that order and direction has been complied with. The Hon'ble Supreme
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Court had dismissed the special leave petition by judgment dated 20.06.2023
in the interregnum the State Election Commission has not identified the
sensitive booths, there was no centralized deployment plan put in place and
there was no centralised plan for logistic support to be provided for the central
forces for their expeditious deployment. However, submissions were made
before the Court as if action has already been taken. At this juncture, it would
be relevant to refer to the preliminary report filed by the Inspector General,
BSF/ Force Coordinator dated 12.07.2023. In Paragraph 12(a) of the report the
efforts made by the Force Coordinator for smooth conduct of elections have
been set out. In sub-para (vii) it has been stated that the force coordinator met
the State Election Commissioner on 30.06.2023, 04.07.2023, 05.072023,
06.07.2023 and 08.07.2023 to discuss about deployment plan and requested
to give the list of sensitive polling booths name wise. However, the response
received from the State Election Commission was totally non-cooperative.
Further, it has been mentioned that various letters are addressed to the State
Election Commission on 24.06.2023, 25.06.2023, 03.07.2023, 04.07.2023,
05.07.2023, 06.07.2023 and 08.07.2023 time and again requesting that the
State Election Commissioner has only provided the number of 4834 polling
stations in 22 Districts without giving actual location of polling booths. Reply
was received from the State Election Commission on 08.07.2023 requesting to
collect the list of sensitive polling booths from the District Magistrate and the
District Polling Officers of the District concerned. On receipt of such
communication the Force Coordinator requested the State Election
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Commission by letter dated 08.07.2023 to intervene immediately by getting in
touch with the District authorities and take appropriate action so that the
forces are deployed at suitable vulnerable booths and there was no reply from
the State Election Commissioner. The Force Coordinator has further gone on
record to state that there has been constant non-cooperation by the State
Election Commission in each and every stage for effective implementation of
the orders passed by this Court. It is submitted that several companies of
central forces were made to sit idle in the respective barracks till the late hours
of 07.07.2023 and finally at 10.55 P.M. a letter was received from the State
Election Commission stating that the Commission has accorded its principal
approval to the proposed deployment plan of CAPFs and field level consultation
may be done with the District Magistrates, Commissioners of Police and
Superintendents of Police. There were instances of lack of detailment of
vehicles for the moment of tours from Jalpaiguri to South Bengal and it is
stated that only after the Force Coordinator telephonically contacted the State
Election Commission, vehicles were provided as a result of which the moment
was delayed for 2 to 3 days. Further, the report states that despite all efforts
the State Election Commission only gave the number of polling booths District
wise without giving actual name wise list and subsequent deployment was
done in consultation with the State Election Commission as per the direction of
this Court in its order dated 06.07.2023. The Force Coordinator has further
stated that instead of providing the detailed deployment plan, the Election
Commission kept on requesting the Ministry of Home Affairs for the remaining
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485 companies out of their original requisition of 800 companies. The State
Election Commission did not make ready the District wise deployment plan
prior to sending the requisition and it goes without saying that unless a proper
deployment plan was made ready or at least a draft deployment plan, the
proper basis for requisitioning 800 companies of central forces could not have
been made. In conclusion the Force Coordinator stated that despite the full
cooperation extended by the Force Coordinator the support and response of the
State Election Commission and the State authorities was found wanting on
number of occasions. It was reiterated that the most important core issue was
the non-cooperation of the State Election Commission by not providing the list
of sensitive polling stations with name and location of 22 Districts even till the
date of the report to which could not be confirmed whether District Police
authorities have correctly deployed the Central Forces in sensitive and
vulnerable booths or otherwise as complaints were received that the Central
Forces were not actually deployed in sensitive booths which should have been
effectively manned and monitored closely. The State Election Commission has
filed their response dated 25.07.2023 to the report of the Force Coordinator.
On a perusal of the response we find that in several paragraphs the denial is
absolutely vague except by stating that the allegations are denied. This is
evidently clear on perusal of Paragraphs 4, 5 and 6 of the response.
Surprisingly, the State Election Commission would state that the Ministry of
Home Affairs and the Force Coordinator never asked for any deployment plan
in advance. We fail to understand as to how the State Election Commission
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could have taken such a stand. The requisition of Central Forces was pursuant
to the directions of this Court. Therefore, it goes without saying that whatever
forces which have been requisitioned should be deployed in such a manner to
best serve the purpose for which such deployment was directed by the Court.
Therefore, it is a pre-requisite that the State Election Commission should have
drawn up a deployment plan well in advance and shared the same with the
Ministry of Home Affairs and the Force Coordinator without even waiting for
the Force Coordinator to seek for the same. This in our view would clearly show
that there has been every attempt to make the order and direction issued in the
writ petition unworkable. The State Election Commission has stated that the
deployment has to be done in consultation with the District Magistrate,
Commissioners of Police and Superintendents of Police. This in our view is a
clear case of shirking the responsibility or shifting the responsibility on a
subordinate who will not be in a position to handle the situation. It was the
duty of the State Election Commission to discuss with the respective DMs/
CPs/ SPs and draw up the deployment plan and forward the same to the Force
Coordinator. It is thereafter when the forces are deployed any minor
adjustment or changes can always be made by the respective DMs/ CPs/ SPs
in consultation with the senior officer who was in charge of that company
which has been deployed to a particular District. This again in our view is a
clear step which has made the order and direction in the writ petition
unworkable. In the response, the State Election Commission has stated that in
certain cases the commanders of the companies were asked to take locations
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from the local police. This again is the clear case of transferring the
responsibility. Thus, we find the response given by SEC thoroughly lacking and
in spite of various observations made in the orders passed in the writ petition
as well as the earlier writ petition, we find that the State Election Commission
was not pro-active to ensure the effective compliance of the order and direction
issued by the Court. The identification of the sensitive booths was directed to
be done by the State Election Commission and there is no other way out and
the State Election Commission could not have delegated the same to any other
subordinate authority. This again is a clear act of contempt.
14. It is the submission of the learned Senior Advocate for the State Election
Commission that at this juncture the question of issuing rule may not arise as
already the Court has proceeded with the matter by adopting the third option
available to the Court under Rule 19 and the parties have already filed their
responses/ affidavits and the contempt petitions are to be heard and at this
stage Rule NISI as provided for in the first scenario is not required to be issued.
Therefore, it is submitted that this Court may consider as to whether it is
necessary to issue Rule as already the allegations have been answered and in
effect there would be no necessity to issue a rule. The learned Senior Advocate
referred to paragraph 6 of the decision in Heinz India Pvt. Ltd. which was
relied on by the learned Senior Counsel for the petitioner/ applicant and
referred to and referred to paragraph 6.3 of the judgment wherein the Court
had explained about Rule 19 of the said Rules. Reliance was also placed on the
decision in Bomkesh Chandra Jana & Ors. Versus State of West Bengal &
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Ors.2 and Samantha Fay Versus Sallo Chaudhury & Ors.3 Therefore, it is
submitted that this Court can hear the submission of the State Election
Commission and the State and dispose of the contempt petition themselves.
The learned Advocate General appearing for the State submitted that the State
Government is not a party in CPAN 831 of 2023 and therefore, the question of
issuing rule to the State or its authorities would not arise. In CPAN 948 of
2023, the parties are the Chief Secretary, the Home Secretary and the Director
General and Inspector General of Police who have been impleaded by name and
perusal of the contempt petition would show that there is no specific allegation
against the concerned persons who have been shown as proposed contemnors
of having willfully and deliberately violated the orders passed by the Court.
Further, it is submitted that though there may be a few allegations in the
petition, all such allegations are absolutely vague. The learned Advocate
General submitted that in any event if the Court is of such a view
unconditional apology is being tendered and that he will be able to substantiate
before this Court as to how effectively the State Government had acted the
matter and referred to the five volumes of documents filed along with the
affidavit of the State Government in response to the report the Force
Coordinator. The learned Advocate General referred to Rule 14, 19 and 26 and
explained the scheme of the rules and the purpose and purport of the issuance
of Rule NISI. Reliance was placed on the decision in Calcutta Corporation
Teachers Association & Anr. Versus Calcutta Municipal Corporation &
2001 SCC Online Cal 4
2009 SCC Online Cal 1990
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Ors. 4 and Ramrao s/o Mahadeo Girhe & Ors. Versus Dr. Shrikant
Jichakar, M.L.C. & Ors.5
15. In the light of the above discussion and after having elaborately heard
the submissions of the respective parties, we are of the clear view that there is
deliberate violation of the order and direction passed by this Court and
therefore this is a fit case where Rule NISI has to be issued in terms of Rule 19
of the Calcutta High Court contempt of Court Rules, 1975 to the State Election
Commission, the respondent contemnor in CPAN 831 of 2023.
16. Accordingly, let rule be issued to the respondent contemnor in CPAN 831
of 2023.
17. So far as CPAN 948 of 2023 is concerned, after hearing the submissions
on either side, we are of the view that a case has not been made out for
issuance of rule against the respondent contemnors and the Court will hear the
contempt application and take a decision on merits.
(T.S. SIVAGNANAM, CJ.)
I agree.
(UDAY KUMAR, J.)
(P.A.-PRAMITA/SACHIN)
1991 SCC Online Cal 114 (DB)
2003 SCC Online Bom 1179 (DB)
