Calcutta High Court Reserves Judgment In Plea Filed By BJP Leader To Hold Municipal Polls In State In One Phase

The Calcutta High Court on Friday reserved judgment in the plea moved by BJP Sate vice-president Pratap Banerjee seeking direction to the West Bengal government and the State Election Commission (SEC) to hold municipal polls in the State in one phase.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj had earlier sought response from the State government stipulating the time period within which the State government would hold elections to the remaining municipal bodies apart from the already notified Kolkata Municipal Corporation. Subsequently, the Bench was informed by the State Election Commission that they had already initiated dialogue with the State government in this regard and that elections for the remaining municipalities would be held in 6-8 phases in the month of May 2022. 

The Bench on Friday heard extensive arguments from the concerned parties and also took on record the affidavits-in-opposition filed by the State government and the State Election Commission as well as the supplementary affidavit filed by the petitioner. 

Submissions by Pinky Anand on behalf of the petitioner

Senior advocate Pinky Anand appearing for the petitioner submitted before the Bench that in the affidavits filed by the State Election Commission and the State government, there have been blatant violations of the directions issued by the High Court in its order dated December 1, 2021. The senior counsel submitted that although the Bench had directed the State Election Commission to file a detailed time schedule regarding the holding of the remaining municipal body elections, such a direction had been not been complied with.

She further averred that the State Election Commission had also not responded to the direction of the High Court wherein the Commission had been asked to explore the feasibility of simultaneous counting of ballot papers of all the Municipal Councils so that election result of one Municipality may not affect the election of other. It was also contended that the State Election Commission was trying to prioritize elections to the Kolkata Municipal Corporation over others since favorable results can be expected by the State government. 

The senior counsel also objected to the plea taken by the State Election Commission that elections to other municipal bodies other than the Kolkata Municipal Corporation were being delayed due to the impending threat of the Omicron strain of the Coronavirus. She remarked, "The Commission is trying to bring the plea of Omicron as if Kolkata is protected from the effect of Omicron"

The Bench was further apprised that the Election Commission had held simultaneous elections for 91 municipal bodies back in 2015. She further submitted before the Bench that as per the directions of the Supreme Court EVMS containing Voter Verified Paper Audit Trail (VVPAT) are mandatory which is not being followed for the elections to the upcoming Kolkata Municipal Corporation as evident from the affidavit submitted. It was further contended that unless such VVPAT containing EVM machines are not made available, it would result in the subversion of free and fair elections. 

In this regard, reliance was also placed on the Supreme Court judgment in Dr. Subramanian Swamy v. Election Commission Of India wherein the Supreme Court had directed the ECI to introduce "paper trail" by use of VVPAT in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. Furthermore, the senior counsel also referred to Supreme Court judgment in N Chandrababu Naidu v. Union Of India wherein the ECI had also been directed to use VVPAT in EVMs for accurate election results. 

Furthermore, it was contended that the State Election Commission had violated Section 38 of the West Bengal Municipal Elections Act, 1994 wherein the Municipal Election Officer is mandated to give public notice of an intended election for the purpose of inviting nominations for the said elections. It was argued that such a provision was not compiled with when it comes to notifying the elections of the Kolkata Municipal Corporation. 

To this the Bench stated, "Can this be gone into at this stage?" In response, the senior counsel stated that she was just attempting to show that elections are being conducted in a partisan manner. She further stated that in case there has been a violation of mandatory provisions, the Court can interfere at any stage and relied on the Supreme Court decision in Rahul Ramesh Wagh v. The State Of Maharashtra in this regard. 

"Either you hold elections or you don't, you cannot choose to hold elections in only one local body", senior advocate Anand further averred. She stated further that the actions of the State Election Commission are malafide and attempt to ensure that results favour only one political party. 

Submissions by Jayanta Mitra on behalf of State Election Commission

Senior Advocate Jayanta Mitra appearing for the State Election Commission contended before the Bench that the two contentions raised by senior counsel Anand in respect of usage of VVPAT containing EVMs and the purported violation of Section 38 of the West Bengal Municipal Elections Act, 1994 had not been averred in the plea filed. "The petitioner attempts to expand the scope of the petitioner everyday", he further alleged. He further contended that such pleas cannot be taken at the present stage of proceedings and that one has to wait for the elections to get over pursuant to the bar under Article 243-2(d) of the Constitution. 

"This was not a part of the petition, it is an afterthought brought about through the supplementary affidavit", the senior counsel remarked. 

He further stated that the situation back in 2015 when supposedly elections to municipal bodies had been conducted together is completely different from the present situation owing to the ongoing Covid-19 pandemic. The senior counsel also contended that various factors such as- Covid 19 protocol, upcoming festivals, board examinations have to be taken into consideration before notifying the schedule for elections to the remaining municipal bodies. 

The Bench enquired from the senior counsel, "You have not given us the time schedule for holding elections to the remaining municipal bodies". In response, the senior counsel informed the Bench that constant consultation process is going on between the State government and the State Election Commission to come up with a time schedule for notifying elections to the remaining municipal bodies. To this, the Chief Justice further enquired, "Is there any record of the constant consultation process?" The senior counsel accordingly responded in the affirmative. 

The Court was further informed that the State Election Commission had written to the ECI to replenish the shortage of EVMs in the State however the ECI had responded stating that it had already loaned all EVMs in stock to other States. Significantly, the senior counsel pointed out that even the EVMs which are given to the ECI to State for the purpose of municipal polls do not have allow for "paper trail" by use of VVPAT. 

The Bench further posed a question to the senior counsel, "Need for additional EVMs will come when you exhaust all other EVMs. For Kolkata Municipal Corporation elections you don't need all EVMs..you can use other EVMs for other elections?" However in response the senior counsel apprised the Bench that this would not be possible as the EVMs used in one Municipal Body election are locked up until the declaration of results. 

The senior counsel further informed the Bench that 8477 EVMs are remaining with the State Election Commission in addition to the EVMs that would be used for holding elections to the already notified Kolkata Municipal Corporation. Accordingly, the Bench enquired, "Why can't you use 8477 EVMs to hold elections in other municipalities?" Senior advocate Mitra responded by stating that it would put across the suggestion to his client. 

The Bench was further apprised that use of EVMs containing VVPAT is only restricted to elections to the State Legislature or the Parliament and not municipal bodies. It was also stated that most of the States such as Madhya Pradesh, Maharashtra among others also do not use EVMs containing VVPAT for their municipal polls. 

Reliance was also placed on Section 36(3) of the West Bengal Municipal Elections Act, 1994 which envisages that the State government vide 'one or more notifications' can call upon the Municipality to elect members. Accordingly, the senior counsel remarked, "The Act itself contemplates that one or more notifications can be given" and thus averred that there is no infirmity in conducting municipal body elections in phases. 

Senior advocate Mitra also alleged that the petitioner is attempting to stall the conduct of elections. He remarked, "I don't understand the intention of the petitioner..if he wants the elections to be held or postponed"

Pertinently, the the Chief Justice stated referring to the counsel that vide the Court's order dated December 1, 2021 direction had been issued to the State Election Commission to provide a time schedule for holding elections for the remaining municipalities before the next date of hearing, however no such time schedule had been filed. In response, the senior counsel stated that the Advocate General appearing for the State would be in a better position to apprise the Bench about the tentative schedule. 

Submissions by AG S.N Mookherjee for State 

The Advocate General submitted that the State had indicated in its affidavit that elections to the remaining municipal bodies would be completed by May 2022. He further informed the Bench that such an outer limited had been reserved keeping in mind the upcoming board examinations, festivals and the ongoing pandemic. 

He further submitted that elections to the Kolkata Municipal Corporation was being prioritized since the vaccination rate is highest there and because it also contains the best medical infrastructure. 

The Advocate General also objected to the plea raised by the petitioner at this stage that EVMS that do not contain paper trails were slated to be used by the State Election Commission. He informed the Court that on the last day of hearing, the Commission had mentioned to the Court what kind of EVMs are available with it on oath and thus the petitioner should have raised such a grievance then. 

It was further submitted that the petitioner is the Sate vice-president of the BJP and that the BJP had filed a plea in the Supreme Court recently seeking directions to the State Functionaries in West Bengal to produce a comprehensive action plan and deploy sufficient Central Police forces to ensure that free and fair Municipal Elections are held in Kolkata. 

"They should have submitted that they have moved the Supreme Court and are seeking several relief for free and fair elections", the AG stated. 

To this the Bench enquired, "was this after our December 1 order or prior?". In response, the AG apprised the Bench that the plea had been filed before the High Court passed its December 1, 2021 order. 

The Court further enquired from the Advocate General by when would the State be in a position to submit a tentative time schedule for holding elections to the remaining municipal bodies. To this, the AG responded that the State government would provide such a time schedule after December 19. 

Background 

Earlier, the petitioner had prayed before the Bench to hold an urgent hearing on the matter after claiming that the State government is mulling holding of elections to municipal corporations of Kolkata and Howrah.

In the plea, the petitioner contended that polls for all pending municipalities must be conducted together instead of prioritising only the polls for the Kolkata Municipal Corporation and the Howrah Municipal Corporation. It was further pointed out to the Bench that elections to more than 100 municipal bodies in the State including municipal corporations of Kolkata and Howrah have been due for a long time.

The SEC had submitted an affidavit before the Court last week stating that it wants to hold elections to the municipal corporations of Kolkata and Howrah first as the number of double vaccinated people in these two cities is high. It had further stipulated that elections to other municipal bodies in the State would be held in phases later.

It may be noted that the State Election Commission which conducts municipal and panchayat polls in consultation with the State government has recently accepted the State's proposal to hold civic body elections in Kolkata and Howrah on December 19 and the last date for filing nominations will be on December 1. The counting of votes will take place on December 22. However, no dates have been announced for conduct of polls in other municipal bodies.

Currently, elections are pending in 112 municipalities of the State since 2020. The stipulated five-year term of elected representatives of these municipalities have ended in the last two years, however polls have not taken place due to the ongoing pandemic. The State government has recently passed a Bill to bifurcate Howrah Municipal Corporation but the Governor has sought clarifications on the legislation.

Case Title: Pratap Banerjee v. State of West Bengal and Ors