'Bar Under Article 329 of Constitution': ECI Objects To Maintainability Of Plea In Calcutta HC Against Bhowanipore Bye-Election

The Election Commission of India (ECI) raised a preliminary objection to the maintainability of the Public Interest Litigation (PIL) petition challenging the decision of the Election Commission of India (ECI) to prioritize the bye-elections of Bhowanipore Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee is set to contest on September 30. 

The petition moved by Sayan Banerjee, through Advocate Ankur Sharma alleged that the priority given to hold the by-elections amidst the Covid-19 pandemic is based on 'unreasonable, mala fide and undue influence' caused by an unelected Chief Minister to interfere with the free and fair democratic process of elections.

The counsel for the petitioner argued before a Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj that the Chief Secretary of the Government of West Bengal had written a letter to the Election Commission of India requesting the Commission to hold the by-election in Bhowanipore so as to save the Chief Minister from Constitutional consequences under Article164(4) of the Constitution of India. 

"The Chief Secretary by writing the letter intended to exercise influence on the Election Commission", the petitioner further contended on Monday. 

On receipt of the letter of the Chief Secretary, the Election Commission had issued a notification on September 6 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. 

Referring to the letter of the Chief Secretary of the Government of West Bengal, the Election Commission, while issuing bye-poll notification had issued a statement which as follows, 

"While the Commission has decided not to hold by-elections in other 31 Assembly constituencies across the country, considering the constitutional exigency and special request from the state of West Bengal, it has decided to hold the by-election in Bhowanipore."

Objecting to the maintainability of the petition, advocate Sidhant Kumar appearing for the ECI contended before the Court that pursuant to Article 329 of the Constitution no petition regarding electoral matters can be entertained by the Court until the declaration of the election results. 

Furthermore Advocate General Kishore Datta submitted before the Court that the Supreme Court has been consistent in holding that under no circumstances can the progress of an election be stalled in view of the bar under Article 329 (b) of the Constitution. Article 329(b) of the Constitution envisages that any election cannot be called in question before a Court except by an election petition presented to the concerned electoral authority. He further contended that the petitioners can seek recourse to Section 100 of the Representation of People Act, 1951 if they wish to allege undue bias exercised by the Election Commission of India. 

On the contrary senior advocate Bikash Ranjan Bhattacharya contended that the Supreme Court has in many instances allowed for the passing of interim orders in such matters. He also contended that 'by-elections' do not create any form of 'constitutional crisis' as a result of which the Court can entertain such a plea. 

After recording the preliminary submissions, the Court listed the matter for further hearing on September 20. 

Case Title: Sayan Banerjee v. The Election Commission of India and Ors