Calcutta High Court Reserves Judgment In Plea Seeking Deployment Of Central Forces For Bidhannagar Municipal Polls

The Calcutta High Court on Wednesday reserved judgment in a batch of PILs seeking deployment of central parliamentary forces for the upcoming elections to the Bidhannagar Municipal Corporation. 

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.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj observant pursuant to the submissions by the concerned parties, 

"We will consider and pass the order. It will be uploaded on the website"

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.

Submissions on behalf of the petitioners 

Senior advocate Pinky Anand appearing for one of the petitioners submitted that it is imperative that central parliamentary forces are deployed during the upcoming elections for the Bidhannagar Municipal Corporation considering the ongoing political violence. She brought to the attention of the Court various incidents of violence allegedly carried out by members of the ruling political party. 

The senior counsel further submitted that BJP party workers are constantly facing threats, intimidation by members of the Trinamool Congress party which is posing a threat to their life and security. Various complaints lodged by BJP party workers were also referred to wherein it was alleged that ruling party workers had vandalised, mutilated hoardings and banners and had also assaulted female BJP party workers. 

It was further submitted that the Bidhannagar Municipal Corporation has a history of experiencing chaos, bloodshed and other forms of violence during elections and thus it is important that central forces are deployed. The senior counsel further submitted that back in 2015 when the State police was responsible for conducting the municipal elections for the Bidhannagar Municipal Corporation, there had been large scale violence. However, in 2016 when central forces were deployed during municipal elections in Bidhannagar, no such violence had taken place. Similarly, in 2021 when central forces had been deployed, no such political violence had taken place, it was contended further. 

Apart from the prayer for deployment of central forces, the senior counsel further implored the Court to issue directions for holding simultaneous counting of votes for both the phases of the upcoming municipal polls in order to ensure that no unfair advantage ensues. The Court was informed that the counting of votes for the first phase of municipal elections i.e. for four municipal corporations – Siliguri, Bidhannagar, Asansol and Chandernagore has been notified to take place on February 14. Whereas the Court was apprised that no date for counting of votes had been notified for the elections to the remaining 108 municipalities which is scheduled to take place on February 27. 

The Court was further apprised that vide a notification dated April 15, 2021, the Election Commission of India (ECI) had revised its rules for polling agents, allowing a party to nominate an agent for any booth within the Assembly segment where the person is a voter. However, senior counsel Anand submitted that the State Election Commission had refused to abide by this regulation as it has permitted the appointment of a polling agent who is a voter of the booth or an adjoining booth that he/she is working at. It was argued that if polling agents hail from the same polling area then there will be a possibility of undue influence. 

At this point, the Chief Justice enquired, "Whether the Court or the State Election Commission,  the primary responsibility rests with whom for deployment of central forces?"  In response senior counsel Anand submitted that the State Election Commission is ideally supposed to take all necessary steps for deployment of central forces, however if the State Election Commission refuses to do so then the Court can issue such a direction by exercising its equity jurisdiction under Article 226 of the Constitution. 

Reliance was also placed on the Supreme Court judgment in All India Trinamool Congress v. State of Tripura wherein the Apex Court had the Home Secretary of Tripura Government, the State Election Commission and the Director General of Police to ensure that every polling booth is manned by sufficient strength of Central Armed Police Force(CAPF) personnel in view of the allegations of political violence. 

Advocate Srijib Chakraborty appearing for a batch of residents of Bidhannagar submitted that there have various reports of large scale violence and accordingly deployment of central forces is of prime importance. He further submitted that the history of Bidhannagar has compelled the residents to file such a petition as there is a grave threat to their life and security in viewing of the ensuing political violence. 

The Court was further apprised of various incidents wherein candidates and voters had been threatened and assaulted. It was further argued that despite assurances given by the State Election Commission that peaceful elections would take place during the Kolkata Municipal polls, there had been various incidents of violence and subsequently various petitions had been filed before the High Court in this regard. 

"If central forces are deployed, nobody will be prejudiced", advocate Chakraborty underscored further. He further contended that if central forces re deployed then it would instill confidence in voters. Reference was also made to petitions moved by CPI(M) candidates alleging that booths were captured, votes were rigged and large-scale violence had taken place during the recently concluded Kolkata Municipal polls that took place on December 19. 

 Submissions on behalf of the State Election Commission

Senior advocate Jayanta Mitra appearing for the State Election Commission apprised the Court that the Commission had taken a very realistic appraisal of the situation and had accordingly deployed various senior police personnel in order to maintain peace and security. He further submitted that violence is being meted out not by members of only one political party but that members of both rival political parties are equally complicit in carrying out the alleged violence. 

The Court was also informed that regular route marches are being conducted and sufficient number of police personnel have been deployed for maintain law and order. The senior counsel further submitted that the Commission had written to the Chief Secretary of the State government, Inspector General of Police and other authorities to ensure a strong and adequate deployment plan for the upcoming Bidhannagar elections. 

It was further contended that armed police personnel would be deployed at every polling booth on the day of elections and various confidence building measures are being undertaken. 

At this point, the Chief Justice enquired, "Is all this on paper or will this be given effect to?" In response, the senior counsel submitted that the Commission has taken on itself responsibility to ensure that confidence is restored in voters. 

The Chief Justice further remarked that similar assurances had been given during the hearing pertaining to the Kolkata Municipal polls but subsequently various petitions had been filed alleging violence. In response, the senior counsel remarked, "My Lordships will have to ascertain the truth or correctness of all those writ petitions". 

Reliance was also placed on Article 243ZA of the Constitution to contend that the State Election Commission has been given the power of assessment in such matters and that Courts rarely interfere in such cases. "That's why Courts say hands off", the senior counsel remarked further. 

The Chief Justice further enquired, "If you deploy central forces, no prejudice will be caused to anyone". The senior counsel responded by stating that a similar plea had been made in the case of Basabi Raichoudhury v. State of West Bengal, however a Division Bench of this Court had held that while exercising judicial review, Courts cannot decide whether central forces will be required for an election and that such a decision must be taken by the State Election Commission only. The senior counsel also made a reference to the Supreme Court judgment in Laxmi Bai v. The Collector in this regard. 

The senior counsel further apprised the Bench that he would file a detailed chart enumerating the various confidence building measures undertaken by the end of the day. 

Refuting the submission of the petitioners that polling agents should not be appointed from the same polling area where he/she is a resident of, it was submitted that such a measure had been taken since a local polling agent will be in a better position to identify any intruders who may come to cast votes despite not being residents. The senior counsel further argued that this also falls within the exclusive jurisdiction of the State Election Commission and thus unless it is shown that such a measure is glaringly unconstitutional, the Court cannot interfere. 

It was also contended that there is no statutory or constitutional mandate which provides that counting of votes for different municipalities have to be done simultaneously and on the same day. 

Submissions on behalf of the State government 

Advocate General S.N Mookherjee appearing for the State government submitted that polling agents are appointed from the same polling area where he/she is a resident of in order to ensure that the polling agent is able to certify that every voter is a resident of the concerned polling area and to negate any malpractices. He referred to Rule 9.1 of the 'Handbook For Polling Agents' which specifies, "A local person might be knowing many of the electors personally and might be of assistance in preventing impersonation at election. Therefore, the polling agents shall be ordinarily resident and electors of the concerned polling areas or of the neighbouring polling station." Reliance was also placed on Section 51 of the West Bengal Municipal Elections Act, 1994 in this regard. 

The Advocate General further argued that counting of votes for all municipalities cannot take place on the same day as the municipal bodies are different. He further argued that municipal elections could not equated with Assembly elections for the purpose of counting of votes. 

Reliance was also placed on the Supreme Court judgment in State of Goa v. Fouziya Imtiaz Shaikh wherein the Apex Court had held that writ Courts must adopt a hands-off policy in such cases and should interfere only after such election process is completed. 

Refuting the submission of the petitioners regarding the deployment of central forces, the Advocate General submitted, "Nobody has submitted how central forces will ensure fair and free elections". He referred to the the incident of alleged firing by Central Industrial Security Force (CISF) personnel on April 10, 2021 at Sitalkuchi in Cooch Behar district during the West Bengal assembly polls which had claimed the lives of four persons. The Advocate General contended that there is no guarantee that violence will not take place even if there is deployment of central forces. 

He further apprised the Bench that from January 28 to February 8, route marches are being conducted by police personnel on a daily basis. It was further submitted that personal security officers have been provided to each of the candidates contesting in the Bidhannagar Municipal polls. If any other candidates want more security, it will be provided, the Court was informed further. 

The Court was apprised that immediate registration of FIRs had been initiated in each of the complaints lodged pertaining to outbreak of political violence and thus the State police was competent to maintain peace and security. 

Submissions on behalf of the Union of India 

Additional Solicitor General Y.J Dastoor informed the Bench that if the Court permits, the Centre is ready to deploy central forces in Bidhannagar within a span of 24 hours. He further informed the Court that sufficient central forces are already present in Kolkata and they can be transported to Bidhannagar if the need arises within 4 hours. 

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