In petitions concerning the upcoming Panchayat elections in West Bengal, the Calcutta High Court today asked the State Election Commission (SEC) if the polling date can be pushed further to grant sufficient time to candidates for filing nominations.
The division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattcharya had last week said that five days time provided for filing nomination papers is prima facie inadequate.
Today, it suggested that if polling, presently scheduled to be held on July 8, is conducted on July 14 then filing of nominations can start from 15th and continue to last till 21st. Scrutiny of nominations may be done till 23rd June and the window for withdrawal may be extended till 26th June.
Since as per Section 43(1)(a) of the West Bengal Panchayat Elections Act, 2003 the last date for making nomination cannot be later than 21 days before the date fixed for the poll, the bench suggested that the polling date may be fixed as July 14.
However, the State Election Commission submitted that Courts cannot interdict the election process and only one day extension can be given without disturbing the election process. In this regard, it cited the proviso to Section 46 of the Act which states that if the Commission is satisfied that there is reasonable apprehension of prevention/ obstruction to the intending candidates from making nominations, it may extend the last date for making nomination for one day.
Nominations close on June 15th. SEC said it can extend the period till 16th June. "17th June date of scrutiny, 18th June date of withdrawal. What I submit is one day extension will not disturb this process. But apart from anything else the process has been like this throughout the years," SEC's counsel Jayant Mitra said.
The State government also expressed disagreement with Court's suggestion, stating that such a step would amount to 'revocation' of notice under Section 43(2), which is beyond the scope of powers of the Election Commission.
Petitioner on the other hand contended that the last date for elected body to take place is August so any order given will not be an interdict on the election. "Date if completion has not been notified. Only date of poll 8th July. So court orders may not result in interdiction."
The Court heard all the parties and length and admitted the petitions filed by Congress leader Adhir Ranjan Chowdhury and BJP's Suvendu Adhikari. The writ petitioners had raised several points of contention such as lack of reasonable notice period for filing nominations, deployment of central reserve forces to maintain law and order, employment of contractual workers as polling officers, among others.
In terms of Court's previous direction, the State Election Commission handed over a report addressing these concerns.
Lack of reasonable time
SEC's counsel Jayant Mitra argued that reasonable time had been provided to the candidates to file their nomination as five days were given from the issue of the notification till the time that nominations were scheduled to close. After the preliminary observations of the court on 9th June, that five days’ notice was prima-facie inadequate, the Counsel for the SEC submitted than one more additional day can be provided in order for the election process to not be disrupted, since the candidates knew that they would need to file for nominations in physical mode on the 24th of April itself.
The grievances of the petitioners are such that due to insufficient time for nomination being provided by the SEC, the prospective candidates are being unable to file their nomination papers. Further, according to the Counsel of the Petitioner, only 4 hours between 11am and 3pm are available for the candidates to file their papers. The Bench noted that if time of nomination is extended, then such an exercise would need to be carried out with the subsequent scrutiny process and then the withdrawal process, which would result in an extension of the entire election timeline. Chief Justice Sivagnaman suggested that five clear days, excluding the date of notice be provided.
The counsel for the SEC however submitted that it is a settled position of law that, the ultimate power with governing an election rest with the Election Commission. Even the Courts cannot give directions that may interdict the election process. Thus, an extension within 43(1)(a) would make sure that the polls take place on the date as notified and would not result in the interdicting of the process, it was submitted.
The Court noted the submissions of the petitioners on the paper work that needed to be completed to file nominations, as well as the restrictive hours of the Offices of the Block Development Officers where nominations had to be filed in physical form, and asked the Counsel for the State Senior Advocate Kalyan Bandhyopadhyay to ensure that working hours of these offices are lengthened to provide a seamless nomination procedure for prospective candidates.
Contractual Workers
Further writ petitions were joined along with these two PILs, objecting to the deployment of contractual workers as Polling Officers in West Bengal. The petitioner submitted instances of more than 2000 contractual workers being appointed as election officers in the State election, along with their ID cards issued by the previous Election Commissioner as well as the NEFT details for the monies paid to them by the commission.
The petitioner submitted that under Section 26(1) of the Representation of People Act, 1951 read with Section 159 of the same Act, after the 1997 amendment, makes it clear that the election commission may requisition election workers from the Governors or Presidents office to make available to the Returning officer for election duties. This is also substantiated in the Election Handbook published by the Election Commission of India.
According to the petitioner, such staff can comprise of any persons who are permanent employees of a state or central government, as well as of any public-sector undertaking, but not of contractual workers, since these workers would lack accountability for not being on the payroll of the government. To substantiate this, the petitioners submit that according to the ECI handbook, polling officers must be organised according to their scale of pay and rank within the government, so that higher scale officers are not place below those at a lower scale.
This exercise would not be possible with contractual workers either. Petitioner in abeyance of his submission that the intention of the legislature was that election officers remain accountable to the governor or president, submits the Supreme Court case of Mritunjay Kumar v State Bank of India Staff Association, wherein Justice Dushyant Dave had held that, while under Article 324 of the Constitution, the Election Commission can issue directions to conduct elections, under clause 6 of Article 324, “staff” would mean staff that is under control of president or governor so that there may be disciplinary action can be taken in case of any unforeseen circumstances.
Chief Justice Sivagnaman acknowledged that even if employees are State employees, they must be permanent employees and not contractual employees to be appointed as poll officers.
The State Election Commission opposed this on the grounds that the RP Act is immaterial in the instant case, since it concerns the WB Panchayat Election Act only. Accordingly, the only embargo under the WB Panchayat Election Act according to the Counsel for the SEC, Mr Mitra, is under Section 28(1), which says that returning officer can appoint polling officers, but shall not appoint any person working for a candidate.
He further submits the handbook for returning officers that allows contractual workers, NCC cadets to be appointed as a last resort if adequate polling officers are unavailable. The Chief Justice takes exception to this, as in his opinion polling officers play a vital roll in verifying voters, and as such much be experienced local personnel of great integrity and accountability. He holds that the handbook of a returning officer will not bind the court, but guidelines issued by the ECI will prevail.
Justice Hiranmay Bhattaharya also pointed out that even under the State Election Commission Act, under Sections 4 and 7, the SEC can requisition additional polling officers from the office of the Governor, which is not possible to do with contractual workers. Justice Sivagnaman asked the SEC to allay the petitioners' fear by stating they would only hire regular government employees as polling officers. He also noted that even if contractual employees are appointed, they can definitely not be polling officers and must be below the rank of the fourth polling officer. The SEC assured the Court that it would not deviate from the settled rules and procedure. However due to there not being any complaints received by the SEC in this matter, they could not take any action on the same.
Deployment of Central Reserve Forces and CCTV cameras
It was the case of some intervenors in today’s Writ petition, in order to ensure the right to life and physical safety of election workers, central paramilitary forces would need to deployed in election areas, and especially sensitive constituencies. The intervenors submitted instances of previous post-poll violences which occurred in numerous previous elections in the recent past. This was taken up along with the submission of an Advocate for a MP from the Malda District who pled for the need of more CCTV cameras to cover not only the insides of the polling booths but also the areas outside the booths. They requested the court to ensure that CCTV footage available to the West Bengal Police is shared with the SEC, to which the court agreed.
Finally, another advocate, intervening-in-person submitted that pursuant to specific directions by the Calcutta High Court bench of Justice Rajshekhar Mantha, as well as a report by the Inspector-General, civic volunteers could not be positioned for law-and-order duties outside polling booths. The advocate submitted instances of violence which have taken place in the district of Murshidabad as an example of the unpreparedness of the EC as well as the lack of law enforcement in sensitive poll areas. The primary submission being that the West Bengal Police force does not have enough officers on its roll to be able to cover the 60000+ booths.
Upon addressing these concerns as well as the petition filed by WB Leader of Opposition Suvendu Adhikari regarding the deployment of central forces for the panchayat elections, Mr Mitra for the SEC submitted that the SEC had taken all the steps to ensure its preparedness along the lines of the judgement of the five-judge bench of the Calcutta High Court on matters of post-poll violence in Bengal, such as keeping CCTV footage, diaries and register of presiding officers, control units of EVM, voting records, as well as CCTV at all conspicuous spots nearby polling booths. Mr Mitra argued that according to that judgement, the rectification of law-and-order situations and deployment of central forces must be made in accordance with decision of the SEC and State government as the Court cannot interfere with such a matter, which was noted by the five-judge bench, wherein they held that in the event Central Reserve Forces were required, they could be requisitioned by the SEC.
Upon the Chief Justice’s enquiry on whether such a requisition was made last time, Mr Mitra submitted that he was relying on the instant judgement only to show that the exercise of finding out whether threats to law and order exist, must be done to the satisfaction of the SEC. He further submitted that in case of any such situations, a complaint must be raised with the SEC, instead of approaching the High Court at the first instance. In conclusion, Mr Mitra without instruction submitted that “it is without instruction I am saying this, but the petitioners and the electorate must keep the election commissioner on his feet. Let us sort out the grievances of the petitioners in the field, instead of doing so before a court of law.”
Chief Justice Sivagnaman concluded with the observations that prevention is better than cure and that proactive measures must be taken by the SEC to prevent clashes. Therefore, since the Central Forces may be available at six hours notice, the SEC was asked to take a decision on whether their involvement would be required in the elections to support the State’s police force.