Calcutta High Court Questions Election Commission For Expediting Bhowanipore Bypolls, Where Mamata Banerjee Contests

The Calcutta High Court on Friday refused to take on record the affidavit filed by the Election Commission of India (ECI) in the Public Interest Litigation (PIL) petition challenging the decision of the Election Commission 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. 

In this regard, 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. The Chief Secretary in the letter addressed to the Election Commission had mentioned that there would be a 'constitutional crisis' if the by-elections in Bhowanipore are not held on an urgent basis. 

On Thursday, the Court had allowed the Election Commission to file an affidavit regarding the contents of the notification issued by it dated September 6 in view of the arguments raised by the petitioner. 

A Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj on Friday came down heavily on the Election Commission for filing the affidavit in an incorrect format and also observed that the affidavit did not contain any specific averments pertaining to the issues raised. 

"Nothing is mentioned in the affidavit, who filed it? We cannot take this on record", ACJ Bindal remarked. 

Senior advocate Bikash Ranjan Bhattacharya appearing for the petitioner also contended before the Bench that such an affidavit must not be taken on record and pointed out to the Court that vital averments had not been affirmed in the affidavit. 

"Is this the kind of affidavit that the highest constitutional authority should submit?", senior counsel Bhattacharya remarked further. 

Advocates Dipayan Chowdhury and Sidhant Kumar appearing for the Election Commission contended that the affidavit had been prepared in 'a great hurry' and thus contained errors. Accordingly, the Court's leave was sought to file a fresh affidavit. 

However, the Bench declined to accede to the request by observing that it is not keen to take any pleading on record now since the hearing of arguments have already been completed. 

"Enough opportunity has been given. You are taking this very causally", ACJ Bindal remarked while addressing the Election Commission. 

The Bench further pointed out that the affidavit makes no mention as to whether the Election Commission has the power to act on the basis of a representation made by the Chief Secretary stipulating that there would be a 'constitutional crisis' if the bye-elections of Bhowanipore Assembly Constituency are not held. 

"What role does the Chief Secretary have to be able to say that there will be a constitutional crisis if the Chief Minister is not elected within 6 months?", ACJ Bindal enquired. 

To this, advocate Sidhant Kumar submitted that there exists a 'consistent practice' of the Election Commission acting on representations made by various political parties and constitutional dignitaries. He also argued that there exists almost 30 years of constitutional convention in this regard. He also referred to Section151A  Section of the Representation of the People Act, 1951which gives complete liberty to the Commission to fix the election schedule. 

"In the past various persons such as the Governor has made representations to the Election Commission", advocate Sidhant Kumar further contended. 

To this, ACJ Bindal remarked with dismay, "You will now equate the Governor with the Chief Secretary?"

"We acted on the substance of the request made by the Chief Secretary, we did not consider it to be a constitutional crisis. We have used the word constitutional exigency", advocate Sidhant Kumar further explained. He further submitted that the actions of the Election Commission were in consonance with the settled constitutional convention as per Article164(4) of the Constitution. 

"That constitutional exigency was not there when it comes to the other Assembly constituencies? Why did you select only one constituency?", ACJ Bindal further remarked. 

ACJ Bindal further opined that a 'few crores' are required to conduct by-elections and thus questioned as to why such costs must be borne by the public exchequer. 

"After election, someone resigns and vacates the seat for someone else to fight the elections. Why will the public bear the cost? ", ACJ Bindal further remarked. 

It may be noted that the bypoll to Bhowanipore constituency was necessitated following the resignation of TMC MLA Sovandeb Chattopadhyay to faciliate Chief Minister Mamata Banerjee's election to the Assembly after she lost while contesting elections from Nandigram during the 2021 Assembly Elections. 

Furthermore, senior advocate Bikash Ranjan Bhattacharya submitted that the Election Commission does not have the power to take note of any such 'constitutional exigency' under Article 164(4) of the Constitution. He placed reliance on the Supreme Court judgment in B.R Kapoor v. State of Tamil Nadu wherein the Supreme Court had held that Article 164(4) is not a source of power or an enabling provision for appointment of a non- legislator as a Minister even for a short duration.

Accordingly, the Bench reserved its order on the issue as to whether the Election Commission can act on a representation made by the Chief Secretary to expedite by-poll elections of a particular constituency. However, the Bench clarified that it would list the matter on another date in order to hear submissions as to whether public funds can be utilized for holding by-elections after the wilful resignation of a particular political leader. 

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

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