Bidhannagar Municipal Polls: Calcutta HC Refuses To Exclude WB Chief Secretary From Panel Assessing Need To Deploy Central Forces

The Calcutta High Court on Friday dismissed an application seeking modification of its order dated February 10, 2022 whereby the Court 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.

The Court had further underscored that in case the State Election Commission decides that no such deployment of central forces is necessary, then the Commissioner of State Election Commission will be personally liable to ensure that no violence takes place.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on Friday was apprised by one of the counsels for the petitioners that a Division Bench of this Court in the case of Sayan Banerjee v. The Election Commission of India and Ors had recorded adverse observations against the Chief Secretary of West Bengal. Accordingly, the counsel had objected to the order of the Court directing the involvement of the Chief Secretary of the State in the decision making process for the deployment of central forces for the Bidhannagar Municipal polls. 

It may be noted that a Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj had expressed strong reservations against the conduct of the Chief Secretary in the challenge made to the decision of the Election Commission of India (ECI) to prioritize the bye-elections of Bhabanipur Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee had contested elections on September 30, 2021. 

In this regard, the ECI had issued a notification on September 6, 2021 stipulating that the by-election would be conducted for the 159-Bhabanipur Assembly Constituency on September 30, underscoring the exigency and special request received from the Chief Secretary, Government of West Bengal to hold the by-election.

The Division Bench had come down heavily on this conduct of the Chief Secretary and had recorded in its order, 

"The most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be constitutional crisis in case election to Bhabanipur Constituency is not held from where respondent No. 5 wants to contest election. What constitutional crisis the Government could face with one person losing or winning election, was not explained. How the Chief Secretary knew that the respondent No. 5 was to contest election from Bhabanipur Assembly Constituency? He was not a party spokesman or a returning officer."

Opining further on the conduct of the Chief Secretary and his remark that there would be a 'constitutional crisis' in the State if the by-polls are not expedited, the Division Bench had further remarked,

"We record our strong reservation about the conduct of the Chief Secretary in writing a letter to the Election Commission stating that there would be 'constitutional crisis' in case by-election to the Bhabanipur Constituency is not held. He is a public servant, who is to discharge his duties in terms of provisions of law, whosoever may be in power. He is not to ensure that any particular person should come in power and in the absence there would be 'constitutional crisis'. 

During the hearing, the counsel for the petitioner argued that there is a precedent of the Chief Secretary misrepresenting the fact situation before the Court. He further remarked, "Material has been changed by concerned person'. 

Dismissing such a contention raised, the Chief Justice remarked on Friday that the Court had not directed the Chief Secretary alone to take any decision, instead, the Chief Secretary along with other officials of the West Bengal government had to jointly decide in consultation with the State Election Commission. 

Having regard to the nature of direction which has been issued by this Court, we are of the opinion that no modification of the order of this Court is required on the basis of the observations made by the earlier Division Bench in the order dated 28.09.2021 in WPA (P) 245 of 2021 in respect of the Chief Secretary of the State.

Furthermore, advocate Srijib Chakraborty appearing for one of the petitioners submitted before the Court that despite the elapse of the stipulated time of 12 hours, no decision as taken by the State Election Commission in consultation with the State government had been communicated to the petitioners. 

Advocate General S.N Mookherjee appearing for the State submitted before the Court that a lengthy meeting had taken place yesterday at the office of the State Election Commission and that the decision taken would be communicated shortly. He further submitted that ASG Y.J Dastoor had earlier informed the Court that the Centre would be able to provide central forces to the State government on a 24 hours notice and hence argued that if required such a requisition would be made.

 Furthermore, the counsel for the State Election Commission informed the Bench that a meeting had been held late into the night yesterday and that the minutes of the meeting had been sought. 

The Chief Justice remarked addressing the State Election Commission, "Finalise soon, don't delay." He further underscored orally, "Be careful in taking a decision, if there is a need you must deploy since it is a personal responsibility'. 

The matter is slated to be heard next on February 15. 

Background

Elections to four municipal corporations – Siliguri, Bidhannagar, Asansol and Chandernagore are scheduled to take place on February 12, 2022 and the results for the four civic bodies will be declared on February 14. 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.

The Court had earlier reserved judgment in the batch of PILs seeking such deployment of central forces for the Bidhannagar Municipal Corporation elections in the wake of allegations of large scale violence.

The Court on Thursday had directed, "We hereby direct that the Commissioner, State Election Commission will hold the joint meeting with the Chief Secretary and Home Secretary of the State and the Director General and Inspector General of Police within 12 hours and will do the reappraisal of the ground situation in Bidhannagar Municipal Corporation area and ascertain if deployment of paramilitary forces is necessary for ensuring the peaceful conduct of election of Bidhannagar Municipal Corporation and if require, he will submit and requisition to the Union Ministry of Home Affairs or the competent authority for deployment of paramilitary forces and any request in this regard will be duly considered having regard to the ground situation and in the interest of ensuring peace, security and orderly conduct of the forthcoming Bidhannagar Municipal Corporation Election without any delay."

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 remarked, "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."

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

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