Why Candidates Apprehending Violence Not Approaching Election Commission? Calcutta High Court Asks In Plea Seeking Fresh Election Process

The Calcutta High Court on Tuesday asked why the candidates apprehending violence amidst the 2023 Panchayat Elections have been hesitant to file election petitions before the State Election Commission.

"If violence has happened against a candidate, what deters them from approaching Election Commission complaining of the same? EC has shown data that withdrawal percentage is 9.1% which is far less than 2018," a division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta orally remarked.

The bench was hearing two PILs filed by an Advocate and an organization namely Save Democracy, seeking re-conduct of elections (where candidates have been declared as 'elected uncontested') and extension of time for filing nominations. They alleged that forceful withdrawal of nominations, violence, and tampering, as well as “spurious nominations” filed by the ruling party’s candidates have “vitiated the election process” and that the State Election Commission and law and order administration of the state have taken no action in order to prevent or address the same.

Over the past few days, the Bench has heard a spate of such petitions alleging interference in election process however, SEC claims it has not received any such complaints. “That’s why the report by commission says no candidate whose nomination is affected has come with election petition. Same thing happened in 2018, none came with petition," the Bench remarked.

It also expressed disinclination to interfere with the nomination process, which got over on June 15th. "…in our earlier judgement we have taken a decision that to what extent EC can extend nominations. That order has become final because the SC has affirmed it.”

Senior Advocate Bikash Ranjan Bhattacharya appearing for the petitioners contended that thousands of ruling-party candidates had filed their nominations for the panchayat elections only on the last day for filing, and that such numbers were “unbelievably large.” The petitioners even claimed that a certain candidate from Minakha constituency in South 24 Parganas, had managed to file his nomination while being in Saudi Arabia for a Hajj pilgrimage.

On the issue of violence, Bhattacharya argued that in an instance of violence in the Tajpur constituency, even the police personnel were allegedly forcing an aspiring candidate to withdraw her nomination, and that when she refused, the police allegedly booked her and her associates under false criminal charges. It was prayed that wherever there have been recorded instances of violence leading to forceful withdrawal of nominations, the elections must be held afresh.

It was argued by the petitioners that under Section 46(2) of the WB Panchayat Election Act (“Act”), the Election Commission has inherent power to defer the election process, and that it cannot at the present stage hide behind the statute and claim that its hands were tied. The counsel argued:

“They are taking shelter of the statute, but the statute cannot predict everything, it only empowers [the SEC] to take steps in order to ensure that filing of nominations are not prevented by violent means. That is the essence of the statute…the SEC has to take steps.”

It was argued that the Election Commission, on account of such impropriety and violence must extend the dates of filing nomination by using its residuary powers under Section 46(2) of the Act, since even those who drafted the aforesaid Act would not have envisaged that such large-scale violence would take place at the stage of filing nominations. It was further contended that if the state legislation does not provide the requisite relief, then the SEC could also seek shelter in Article 324 of the Constitution of India which deals with the Election Commission.

"Election is the whole process, not just polling. Free and fair [elections] must cover the whole process, from date of notification to declaration of results. If at any time free and fair is vitiated then entire process is vitiated. Residuary powers of SEC are wide enough to include all powers necessary for smooth conduct of election, which is its entire process, with all stages. If law is silent, then Article 324 of constitution can be resorted to for conduct of free elections…since it is a constitutional body, the SEC cannot hide behind statutes. The State legislation is merely for guidance, and contingencies that arose in this case could not be foreseen by the law makers. In such a case, the SEC can fill up the lacunae till there is a legislation enacted on the subject. Accordingly, the SEC had immense powers to ensure free and fair elections….they must exercise this power and not be mere onlookers...Democracy depends on free and fair poll, that is why this power should be exercised,” it was argued.

On the other hand, the State Election Commission represented by Senior Advocate Jishnu Saha contended that after being “rebuked” by the Court, the Election Commission had remedied the situation to a large extent.

It was claimed that, even on earlier occasions, when the Court had extended time for filing nominations for ‘Shiksha Bandhus’ under Section 46(2), the SEC had not opposed the same and abided by the direction of the Court. It was thus claimed, that filing such a petition ten days after the last date for filing nominations had passed, reeked of mala fides.

On the issue of violence, the SEC submitted that it had taken cognizance of every single report of violence that was made to it, and those guilty of committing acts of violence were being dealt with in accordance with law and had been arrested as well.

Saha argued that the instant petitions were vague, general and did not make out any specific instances of violence or corruption that had not been already addressed by the Court or by the SEC itself. He further argued that filing a large number of nominations in the span of one day, by the ruling party was not under the purview of the duties of the SEC and that such a submission, based only on conjecture and media reports, in the absence of any concrete evidence could not be the basis for making prayers as serious as those made by the writ petitioners.

“I am wondering what the EC has to do about the fact that ruling party nominations have come in large numbers. The process of scrutiny and withdrawal is always there. The entire cause of action is that a large number of nominations were filed in a short time. Aside from that, each of the other allegations has been addressed by this Court. The petition is based on hearsay and newspaper reports, as it says so itself,” Saha contended.

He continued, “The thrust of their submission was that people have been prevented in filing nominations, but there is no causation that for such an incident where candidates were prevented from filing nominations. The Commission has complied with the orders of the Court, and did not stand in the way of the Court when it deemed that a one-day extension for filing nominations was necessary. The court has deeply legislated on the matter. How, why and who has been prevented from filing? In the absence of particular details why should the entire process be disrupted? Whenever there is real and genuine grievance, the commission will step in. Even workers of the ruling party have been arrested in cases of violence. If Court is of the opinion that other incidents need to be investigated, we will, but none have been brought up.”

Before rising for the day, Chief Justice Sivagnanam orally remarked that the supplementary affidavits filed with one of the petitions in the matter were identical to each other. He observed, “The supplementary affidavits that have been filed, they are all identical…only thing is, our Notary at City Civil Court has stamped it on the 26^th of June.”

The matter has been listed for further hearing on 28^th June.

Notably, in another matter relating to the Panchayat elections, a division bench of Chief Justice Sivagnanam and Justice Ajay Kumar Gupta had observed that political motivation and not public spirit may be behind substantial similarities found between a petition filed by “independent voters” and one filed by “aspiring candidates” complaining of seats being won uncontested affecting the voters right to choice and the aspiring candidates being stopped from filing nominations.

Coram: Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta

Case: Ujjwal Trivedi v State of WB with Save Democracy & ors v State of WB.