Calcutta HC Reserves Judgment In BJP's Plea Alleging Large Scale Violence During WB Municipal Polls

The Calcutta High Court on Monday reserved judgment in Bhartiya Janata Party (BJP)'s petition alleging that large scale violence and rigging of votes took place during the recently conducted municipal elections in West Bengal. The petition also sought for deployment of central forces for the remaining 108 municipalities which is scheduled to take place on February 27.

Elections to four municipal corporations – Siliguri, Bidhannagar, Asansol and Chandernagore took place on February 12. Polls to these four municipal corporations were postponed at the instructions of the High Court considering the spike in COVID-19 infections a couple of weeks ago. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Monday took on record the affidavits-in-opposition filed by the State Election Commission (SEC) and the State government. The reply filed by the BJP was also taken on record.

The Bench further observed pursuant to the submissions of the parties,  

"We will consider it, we are reserving orders"

Confidence reposed in SEC has been belied: BJP 

In the plea filed by BJP, a host of directions were prayed for with respect to the elections of the remaining 108 municipalities- deployment of central forces, effective CCTV surveillance, establishment of an independent and impartial Observer, verification of photo identity cards before entry into polling booths, making the State Election Commissioner personally responsible if violence takes place. Additionally, the plea seeks cancellation of the elections that took place on February 12.

Senior advocate Paramjit Patwalia appearing for BJP submitted before the Court that it is evident that a completely free and fair elections were not possible in the first phase of the municipal polls. He referred to the decision of the Court dated February 10 wherein the Court had instructed the SEC to do a reappraisal of the ground situation pertaining to the elections of the Bidhannagar Municipal Corporation.

Accordingly, he contended that the confidence reposed in the SEC has been belied. The Court was further apprised that many BJP candidates were unable to file their nomination papers for the elections to the remaining municipal polls. The senior counsel further contended that goons in cahoots with police authorities had prevented people from filing nominations. It was also contended that one candidate's car was horribly attacked while going to file nomination papers. 

At this point, the Chief Justice remarked, "Please disclose who all have been prevented from filing nomination papers..chart does not contain names of candidates". In response the senior counsel mentioned that he would file an affidavit containing the names of the aggrieved candidates. He also referred to candidate Rakesh Majumdar who had allegedly been prevented from filing his nomination papers. 

"I am asking your Lordships to take a holistic view to supplement state forces with central forces, independent observers so that there is free and fair elections", the senior counsel remarked further. 

In this regard, the Chief Justice further questioned, "Are there judgments where Court has initially itself assessed the ground situation?" The Chief Justice further referred to the judgment in  Basabi Raichoudhury v. State of West Bengal wherein a Coordinate Bench of the Court had ruled that decisions in this regard must be left to the discretion of the SEC. 

In response, the senior counsel placed reliance on the Supreme Court judgment in All India Trinamool Congress v. State of Tripura the Apex Court had directed for the deployment of Central Armed Police Force(CAPF) personnel for the local body elections in Tripura. He further stated that the dictum in Basabi Raichoudhury v. State of West Bengal was specific to the facts of that case and that the Court had noted that sufficient material had not been placed on record which is not the case in the instant proceedings. 

The Court was further apprised that police authorities were not accepting complaints from the BJP candidates and that the SEC has been acting in a partisan manner. Referring to the response of the SEC filed on record the senior counsel further averred, "Their response is that there are no complaints..I have filed those complaints on record".

He further contended that the SEC had permitted the implementation of various State government schemes such as "Duare Sarkar" (government at doorsteps) and "Paray Samadhan" (resolve issues at locality) in the municipalities wherein elections are ongoing in violation of the Model Code of Conduct. 

The Court was also apprised that votes had been cast in the name of deceased persons and a female BJP worker had also been mercilessly beaten up. The senior counsel also took exception to the fact that senior advocate Jayanta Mitra appearing for the SEC on the last date of hearing had placed reliance on the newspaper report of Jago Bangla which he contended was a 'mouthpiece of the TMC'. 

Reliance was placed on the newspaper reports of Telegraph, Indian Express to contend that the recently concluded municipal elections were not peaceful. It was further alleged that the Inspector-In-Charge of the Contai police station had directed residents to vote for TMC. It was submitted that Contai is in Nandigram and is a highly contentious municipality since Chief Minister Mamata Banerjee is set to contest elections from there. 

Further referring to the minutes of the meeting filed by the SEC pursuant to the Court's earlier directions, it was submitted that the report is silent on the specific considerations relied upon by the SEC while deciding to not deploy central forces. The Court earlier had directed the SEC to hold a joint meeting with officials of the West Bengal government within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation.

The senior counsel further referred to the recent incident wherein Chief Minister Mamata Banerjee had distributed titles to freehold land among nearly 2000 refugee families living across the state. It was alleged that this conduct had violated the Model Code of Conduct. 

The Court was further apprised that the SEC has decided to not have paper seals in the EVMs for the Contai municipality. It was stated that paper seals ensure that votes are not tampered with. The senior counsel further averred that today itself the SEC had released a notification allowing such paper seals for limited polling booths in Contai. 

The Chief Justice further questioned the senior counsel on the prayer seeking an independent observer, "Apart from the State Election Commission, can there be any other independent observer?" In response the senior counsel responded that officers from the central government departments can be made independent observers. He further apprised the Court that such a measure had been directed by the Supreme Court in the case of Tripura local body elections. 

Only 'stray incidents' have been reported: SEC 

Senior advocate Jayanta Mitra appearing for the SEC submitted that the concerned BJP candidates had not come to file their nomination papers on time which is why their candidature were rejected. He stated that their nomination papers were not rejected because of the 'whims' of certain persons country to the allegations levelled. 

He further stated that the aggrieved BJP candidate Rakesh Majumdar had challenged his rejection of nomination papers and that such a challenge should be dealt with in an election petition instead of the instant proceedings. 

The Court was further apprised that 72 percent of the people had voted in the recently concluded elections which shows that people were not under any fear or apprehension. Referring to the various reports filed by police authorities, the senior counsel further stated that no incidents of violence had been reported in Bidhannagar and that there were no police complaints of any bodily harm. 

"Such records not available with the police, nobody has complained about this", the senior counsel further remarked. 

The Court was further apprised that certain 'stray incidents' had been reported but they had been immediately addressed by the concerned police authorities. Refuting the reliance placed by the opposing counsel on newspaper reports, it was further submitted that newspaper reports are not admissible as evidence under Section 81 of the Indian Evidence Act, 1872. 

The senior counsel also placed reliance on other newspaper reports of the Statesman, Times Of India, Anandabazar Patrika, Pratidin to contend that the recently conducted municipal polls were peaceful. 

"The State Election Commission is acting independently, they have assessed the situation independently", the senior counsel submitted further. 

Referring to the minutes of the meeting submitted by the SEC wherein the SEC had decided to not deploy central forces for the concluded municipal polls, the Chief Justice questioned, "Point out from the minutes what material did you take into account". The Chief Justice further expressed dissatisfaction with the minutes placed on record by observing that the SEC had held only a 'threadbare discussion" and had only taken oral feedback about the ground situation from the concerned authorities. 

The Court was further apprised that the alleged government schemes had been started way back in December 2021 and had been subsequently halted because of the pandemic. It was again restarted in February 2022 with the abatement of the effects of the Covid-19 pandemic. Accordingly, it was contended that there had been no breach of the model code of conduct. 

The senior counsel further averred that the Court has to make a prima facie determination that there was so much of disturbance that free and fair elections were not held before it can issue a direction for deployment of central forces. 

Referring to the earlier order wherein the Court had directed for the preservation of CCTV footage and other relevant records, the Chief Justice further underscored, "If in the audit it is found that irregularities were there then the State Election Commission will be in serious trouble". The Chief Justice further remarked, "The Central Election Commission is an independent body..why can't they scrutinise the preserved records?" 

In response, the senior counsel stated that it is 'premature' to consider the prayer of Central Election Commission auditing the preserved records. He further prayed before the Court to repose faith in the SEC. 

Clear misuse of PIL jurisdiction, names of aggrieved candidates not submitted: State Gov 

Advocate General S.N Mookherjee submitted that the petitioner's prayer for preservation of CCTV footage has already been addressed by the Court vide its order dated December 24, 2021.He further submitted that decision regarding deployment of central forces is a matter relating to the mode of conduct of elections and hence falls within the purview of the SEC pursuant to Article 243ZA(1) of the Constitution. 

He further submitted that no evidence of violence during campaigning or otherwise has been submitted by the petitioner. Referring to the allegation that BJP party workers had been prevented from filing nomination papers, it was submitted that except for one name, no other names of aggrieved candidates have been provided. 

The Advocate General further underscored that no names have been given with respect to candidates who had allegedly been 'mercilessly beaten'. He further submitted that the petitioner being a BJP Leader has access to party records however no names had been submitted. 

"It is a clear misuse of PIL jurisdiction", the AG submitted further. He further remarked, "Clearly shows that we are having a game of upmanship and this Court cannot be a playground for it". 

The Court was further apprised that the petitioner had not averred any ground which would necessitate an independent Micro Observer for the upcoming polls. He further submitted that the State government was taking reports were being taken from the concerned authorities on a daily basis during the concluded elections. 

He also submitted that the alleged government schemes had been initiated way before the declaration of the dates of the municipal polls and thus there has been no breach of the model code of conduct. 

Initiative to give land deeds to refugees has been going on for the last 50 years: WB Urban Development Department 

Senior counsel Saktinath Mukherjee appearing for the West Bengal Urban Development Development submitted that the alleged incident of the Chief Minister distributing titles to freehold land among nearly 2000 refugee families living across the state did not violate the Model Code of Conduct. He submitted that it is a programme to regularise the occupation of the refugees and had been initiated before the commencement of the elections. 

He further underscored that such a programme has been going on for the last 50 years. He argued that the Model Code of Conduct does not apply to continuing programmes. 

Background

The Court earlier had directed the State Election Commission to hold a joint meeting with the Chief Secretary and Home Secretary of the State as well as the Director General and Inspector General of Police within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation.

Opining that the Commissioner of the State Election Commission will be held personally liable to ensure that no violence takes place, the Court had further directed, "In case, if the Commissioner, State Election Commission forms an opinion that deployment of the paramilitary forces during Bidhannagar Municipal Corporation election is not necessary, then he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held in Bidhannagar."

The State Election Commission had subsequently decided to not deploy central forces for the elections to the 4 municipal corporations.

It may be noted that the High Court in December 2021 had dismissed an appeal moved by the Bharathiya Janata Party (BJP) against a Single Bench order of the High Court wherein BJP's plea seeking deployment of Central Forces for the Kolkata Municipal Elections had been declined. The Kolkata Municipal Corporation Elections took place on December 19.

The Supreme Court had earlier refused to entertain such a plea by the BJP seeking deployment of Central Forces for the Kolkata Municipal Elections, by asking the party to approach the Calcutta High Court for such a relief. "We cannot take decisions with respect to the requirement of Central force. High Court will be in a better position to know the situation", the bench comprising Justices L Nagesara Rao and BR Gavai of the Supreme Court had told Senior Advocate Maninder Singh, who was appearing for the BJP.

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters