We Don't Operate In A Totalitarian State, Govt Can't Exercise Blanket Power Over Every Institution Under The Sun: Calcutta High Court

The Calcutta High Court has recently allowed a plea by the Associations, working for the Malda Districts Central Cooperative Bank and the Mugberia Central Cooperative Bank (petitioners), directing that the Election Commission of India (ECI) shall not requisition them for the purpose of any parliamentary elections, since the organisations which they worked in, were not created by any statute or under any law.

A single bench of Justice Sabyasachi Bhattacharya held:

"We do not operate in a totalitarian state and, as such, it cannot be held that the Government has blanket power over any and every institution or concern or undertaking or operating under the Sun within the territory of India for any purpose whatsoever, unless so stipulated specifically in the Constitution or any specific law. For the limited purpose under discussion thus, Article 324 has to be read in conjunction with Section 159 of the Representation of People Act. The bank cannot be said to be one controlled, partially or wholly, or financed by any Government."

"The separate mention of a Government company in Section 159of the RP Act as well as in Section 21 of the IPC are clear inbuilt indicators which, as tools of internal aid of construction of the said statutes, unerringly point towards the fact that co-operative societies in the context of the 2006 Act are not concerns or undertakings or institutions established by or under the said Act," the Court added.

The petitioners argued that the Bank was registered under the West Bengal Cooperative Societies Act, 2006, but did not come within the purview of Section 159 of the RP Act or receive substantial funding from the central or state government.

Counsel argued that the ECI wrongfully relied on Section 21 of the IPC when the prerequisite for such an appointment for elections would require requisition under Sections 159 and 26 of the RP Act. 

Counsel argued that reliance on Article 324 of the Constitution in isolation would not be legally sound, due to the presence of Section 159.

It was contended that the bank has not been established under a Central or State Act. There is a distinction between a body corporate established under such an Act and a body corporate registered/incorporated under an Act. The latter applies to the Cooperative Bank-in-question and as such the arguments of the ECI on that count are not tenable in the eye of the law, it was stated.

Counsel for the bank supported these submissions and argued that the bank was merely registered under the 2006 Act and not established under it. 

Counsel for the ECI argued that Article 324 gives it ample powers to seek staff for elections. It was stated that the petitioners come within the definition of public servant under Section 21 of the IPC and thus the ECI could requistion them.

It was further contended that, in the present case, there was a prior requisition under Section 159 read with Article 324 preceding the appointment under Section 26. 

Court held that Article 324 needed to be read in conjunction with Section 159 of the RP Act for the purpose of appointment of competent officers who could be appointed under the Act.

Thus, it cannot be said that Article 324 overrides Section 159 of the RP Act. Rather, a harmonious and correct construction would be that the powers exercisable under Article 324 by the ECI are circumscribed by Section 159 of the RP Act, which is a specific statue inter alia for the purpose of conduct of elections, insofar as the persons who can be appointed for the purpose of election by the ECI is concerned,' it was held.

Accordingly, the plea was allowed and the order of the ECI requisitioning the petitioners for the general elections was set aside. 

Citation: 2024 LiveLaw (Cal) 118

Case: Malda District Central Cooperative Bank Employees Association and others Vs. The Election Commission of India and others 

Case No: WPA No.10325 of 2024

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