Panchayat Elections: Calcutta High Court Directs SEC To Reconsider Names 'Abruptly' Dropped From Contesting Candidates List, Verify Claims Of Violence

The Calcutta High Court has observed that election of candidates uncontested has a detrimental impact on the right to choice afforded to voters of an electorate.

A single-judge bench of Justice Amrita Sinha thus directed the State Election Commission to reconsider its decision declaring certain candidates as 'elected uncontested', after abruptly dropping the names of other candidates from the final list of contesting candidates in Bhangore district. The names were dropped citing delay in filing the nomination papers.

Aggrieved candidates said their nominations were filed beyond the scheduled time in view of rampant election violence.

The Court said there is no provision in law to drop the names of prospective candidates from the list of validly nominated candidates if the said candidates did not withdraw their nominations.

"The fact that the names of the petitioners were enlisted in the list of validly nominated candidates implies that the nomination papers of the petitioners were in order and accordingly accepted by the Returning Officer. The same could not have been rejected and the name of the candidate could not have been abruptly dropped from the list of validly nominated candidates only on an objection filed by the opponent candidate," it observed.

It has thus directed the SEC to individually and thoroughly investigate each and every instance of corruption and violence being claimed by the petitioners and redress the same by June 28^th.

“After all, no person has a vested right to be elected uncontested. The moment a candidate files nomination he is aware that he has to contest or compete against one or more candidates for a particular seat. The meaning of the word ‘election’ as appearing in the Black’s Law Dictionary, 9th edition is the exercise of a choice; esp., the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies. The same implies that in an election there may be one or more candidates eying for a single seat and one is required to compete the other by obtaining votes from the electorate to win the said seat. The elimination of a candidate ought not to be on frivolous grounds but in a democracy the elimination ought to be on the number of votes obtained by the candidate.”

Court said it is for the Returning Officer to apply his mind and to take a conscious decision as to whether at all there was any genuine reason for the candidate to not submit the nomination within the prescribed time limit. It reminded the SEC of Section 49(4) of the West Bengal Panchayat Elections Act, 2003, which lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

"Can a slight delay in filing the nomination paper be treated as substantial ground so as to reject the nomination paper of a prospective candidate? What if the delay was not for any fault on the part of the candidate? What if the candidate was forcefully resisted to submit the nomination paper within the prescribed time limit? Does it make much of a difference if the nomination paper is filed a few minutes beyond the scheduled time?" the bench asked the Commission to consider.

Justice Sinha also noted that the Court was facing an unprecedented spathe of petitions claiming election corruption, violence and some form of impropriety or the other. Earlier, the same bench had taken exception to the instances of violence and bloodshed that were alleged to be taking place at the stage of nominations for the Panchayat elections.

It was underlined by the Court, that India, being a democracy, by definition allows people to possess a right to choose, especially when exercising their right of franchise to elect their representatives, and that a Constitutional Court in protecting the rights of candidates and the electorate in such a democracy, cannot keep “its eyes shut” when issues such issues area brought before it. The bench opined:

“India being a democratic country, people have the right to choose a candidate of their choice. A choice must be given to the electors to choose their representative. Getting elected uncontested robs off the electors to exercise their choice. Even though there is a candidate interested to contest the election but has been denied to contest the same, implies that all is not right in the process and the loopholes in the process is required to be plugged immediately. All the intending candidates should be permitted to face the electors to save the democracy.

Can the Constitutional Court keep its eyes shut when there are definite instances in support of the submission that there were genuine and valid reasons for not being able to file the nomination papers by the prospective candidates within the prescribed time period? Will that not amount to polluting the free and fair election process? Can the same be taken as proper democracy? Will the same not amount to infringement on the statutory right of a candidate to contest an election?”

It has directed the Election Commission to carry out an independent and exhaustive investigation into the claims made by the candidates. It ordered,

"The Commission is directed to verify each and every allegation separately and if it appears to the Commission that the names of the intending candidates have been wrongly removed from the list of contesting candidates, then steps shall be taken by the Commission positively by 28th June, 2023 to redress the issue and make sure that the validly nominated candidates are able to contest the election and face the electors."

Before parting, the Court said during elections the Returning Officer is under the direct control and supervision of the Commission. However, in this case it was State government itself opposing the plea made by the petitioners pertaining to being wrongfully removed from the voters rolls. Taking exception to this, it remarked,

"The acts and actions of the Commission is under question. During the course of election, the Returning Officer is under the direct control and supervision of the Commission. The fact that the State is opposing the petition goes to show that the State administration does not want to face the contest and is interested to win the elections uncontested. Seats where there are no opposing contestants will certainly go uncontested, but seats where there are intending contestants, the Commission ought to ensure that the seat is filled up only on contest and not uncontested.”

Coram: Justice Amrita Sinha

Case: Beshaka Mondal & Ors v. The State of West Bengal & Ors

Citation: 2023 LiveLaw (Cal) 174

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