Calcutta High Court Reserves Judgment In BJP's Plea Challenging Single Bench Order Declining Plea To Deploy Central Forces For Kolkata Municipal Elections

The Calcutta High Court on Friday reserved judgment in the 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 upcoming Kolkata Municipal Elections had been declined. The Kolkata Municipal Corporation election is scheduled to be held on December 19.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj orally remarked, "We will pass an order but we will not assemble for the order since tomorrow is a holiday. The order will be uploaded on the website by today or tomorrow". 

The Bench further observed that they will not be disposing of the plea and that the next hearing will take place on December 23. 

"We have kept it pending to see if what has been stated in this Court is being complied with", the Chief Justice remarked further. 

Submissions on behalf of BJP

The senior counsel appearing for the BJP stated that the instant plea had been filed not only with regards to certain candidates of the BJP but included an all-encompassing prayer to ensure that there are free and fair elections with the assistance of central forces. He further stated that there is a 'deep apprehension' not only to the lives of the contesting candidates but also to the lives of the voters who form the backbone of the democracy. Reference was also made to the post poll violence that had taken place during the State Assembly elections back in May 2021. 

"Our plea had germinated out of the post poll violence that took place in May and is continuing even now..there is grave apprehension and fear in participating and even voting in any election where the ruling party is involved", the senior counsel remarked. 

He further apprised the Bench that pursuant to an order of the High Court dated August 19, the Central Bureau of Investigation (CBI) had been instructed to investigate cases related to murder, rape and crime against women. The Bench was also informed that a Special Investigation Team (SIT) had been constituted to investigate into the other criminal cases related to post poll violence.

"Subsequently 4000 FIRs had been registered by the SIT..voters cannot come and vote..the apprehension has to be taken into consideration", the senior counsel remarked further. He also placed reliance on the report submitted by a 7 member NHRC committee that had been instructed to examine complaints filed by persons who were allegedly displaced during the post-poll violence in West Bengal. The senior counsel argued that the NHRC committee had stated in the report that the widespread violence had taken place on account of political vendetta.  

"Everyday writ petitions are being filed that people are not being allowed to go home..what is the change in circumstances?", the senior counsel remarked further referring to the post poll violence. It was also pointed out to the Bench that one of the contesting candidates from the ruling party is an accused in the case of murder of Abhijeet Sarkar, a BJP worker who had been killed during the post poll violence. 

It was further submitted to the Court that the in the year 2013 the State Election Commission had themselves approached the High Court seeking deployment of central forces (CAPF) in light of the prevailing law and order situation, however, no such plea has been made by the Commission now even when circumstances are far worse. 

Assailing the impugned order, the senior counsel further contended that the Single Judge was under a 'misconception' that the plea had been filed by 4 contesting candidates of the BJP when in fact the plea had been filed only by the BJP party seeking expansive relief in order to ensure free elections. He referred to the impugned order wherein the Single Bench had refused to deploy central forces by observing that the grievance of the four petitioners had been attended to. 

"Having heard the Counsels appearing on behalf of the respective parties, this Court is of the view that the Commissioner of Police has taken steps. Security has been provided to the four petitioners. Additional and further security, if necessary, shall also be provided by the Commissioner of Police, Kolkata after reviewing the four cases before the day of Election", the impugned order had stated. 

Opining further on the impugned order, the senior counsel further remarked, "The entire conception was that four people had come and they had been protected..which cannot be taken as gospel truth for disposing of my writ petition". 

Reliance was also placed on the Supreme Court judgment in All India Trinamool Congress v. State of Tripura wherein the Apex Court had directed for the deployment of Central Armed Police Force(CAPF) personnel during the local body elections in Tripura in view of the alleged widespread acts of violence. 

Urging the Court to permit the deployment of central forces, the senior counsel further submitted, "I have to exercise my franchise without any fear and that fear won't go away if they see the State police". It was also pointed out to the Court that citizens are not coming out to vote out of fear of the machinery of the ruling party. It was submitted that it was evident in the recently concluded bypolls that the percentage of voters had fallen drastically.  

Submissions on behalf of the State Election Commission 

Senior advocate Ratnanko Banerji appearing for the State Election Commission stated that the entire case of the appellants is based on the apprehension of the previous State Assembly elections. He submitted that the Election Commission has taken various steps to ensure that the Kolkata Municipal elections are conducted in a fair and free manner 

"We have been in meetings with the State government since November 13 for the purpose of ensuring that elections are conducted in a fair manner", the senior counsel submitted further. 

Refuting the contention of the BJP that the writ petition did not only include the grievance of the four contesting candidates, the senior counsel pointed out to the Court that in the plea filed the BJP had specifically mentioned the names of four contesting candidates whose complaints to the Police Commissioner had allegedly not been addressed. 

It was further pointed out to the Bench that in the impugned order it had been noted that the four complaints were exactly the same in language. 

Opining on the complaints lodged by the contesting candidates, the Court had observed in the impugned order, "This Court notices that three of the complaints are in the same text mechanically reproduced."

"There is adequate police force in the State, no case has been made out that additional forces are required", the counsel submitted further. Reliance was also placed on the Calcutta High Court decision in the Basabi Raichoudhury v. State of West Bengal & Ors wherein a Division Bench of this Court had held that the deployment of Central Forces in a Municipal Election has to be at the decision of the State Election Commission. This decision had also been relied upon by the Single Bench, it was informed further. 

"No case has been made out in the writ petition to supersede the orders passed by the State Election Commission to ensure free and fair elections, it was submitted further. 

At this point, the Chief Justice enquired from the counsel, "A grievance has been advanced that voters are afraid to come out and vote based on their past experience. What is your response to that?" The counsel responded by stating that extensive armed personnel and police forces have been deployed to ensure that voters feel secure. He further referred to a letter of the State Election Commission dated December 11, 2021 wherein the scale of deployment of the forces had been indicated. The Court was informed that a total of 22, 621 police personnel have been deployed. The Bench was further apprised that pursuant to prior directions of the Court CCTV cameras had been installed in all polling booths. 

The Chief Justice further enquired, "Have you fixed responsibility on any officer to ensure that these many police forces will be present?" In response, the counsel responded that responsibility has been fixed on the Commissioner of Police, Director General of Police to ensure that the State Election Commission's order regarding the scale of deployment is complied with. 

The counsel further submitted that in the Supreme Court judgment in All India Trinamool Congress v. State of Tripura the State Election Commission had asked for the deployment of central forces and that the Apex Court had passed such a direction pursuant to the request made by the concerned State Election Commission. "The Hon'ble Supreme Court left it on the stakeholders to assess the situation", the counsel remarked further. 

At this juncture, the Chief Justice further questioned, "Per polling booth how many voters will be there?" The counsel submitted that there would be nearly 15, 400 voters. To this, the Chief Justice remarked, "For 15,600 voters you are deploying 25 police personnel, do you think it is sufficient?" In response, the Chief Justice was apprised that the deployment is sufficient and if the Court orders, arrangements for further deployment can be initiated. 

Enquiring further, the Chief Justice remarked, "From when will route march commence? What will be the frequency of it? You must have planned something?" In response, the Chief Justice was informed that route march will commence from 5 pm on Friday to boost the confidence of the voters. The Chief Justice further quizzed, "With only 20, 600 police personnel you will be able to do it?" In response, the State Election Commission stated that if required additional forces can be deployed. 

Concluding his submissions, the counsel remarked, "Any order to the contrary will cause erosion of the confidence of a constitutional authority". 

Submissions on behalf of the State 

The Advocate General S.N Mookherjee submitted that the 5 judge Bench order of the Calcutta High Court in the post poll violence matter had not even been annexed in the writ petition filed. He further informed the Court that the primary basis of BJP's plea was that threats were being issued to contesting candidates of the BJP and this grievance has already been taken care of.

The Court was further apprised that the four complaints in question were exactly similar in language as had already been noted in the impugned order. The AG also remarked that in the complaints wherein it had been alleged that threats were being issued to the contesting candidates, there has been no mention of the concerned TMC party members who had been allegedly issuing such threats. 

"During the entire period since elections had been notified, no incident of violence has been recorded", the AG submitted further. It was also pointed out to the Court that the appeal filed before this Bench is 'a verbatim copy' of the plea filed before the Supreme Court which had been dismissed by the Apex Court with the direction that the BJP should approach the High Court. 

"Because of the post poll violence incident to say that we will never have fair and free elections unless paramilitary forces are deployed..in my humble submission, it is plausibly not the correct way of looking at it", the AG averred further. 

The Chief Justice enquired from the AG, "who are the police officers responsible for the law and order situation?" In response, the AG remarked that the Commissioner of Police, Director-General of Police, Inspector General of Police have been accorded responsibility. 

It was also highlighted that in the case of All India Trinamool Congress v. State of Tripura threats had been established pursuant to which the Apex Court had deployed central forces which is the case here. "Here threats have been addressed by the police..who are giving the threats? Names are blank", the AG submitted. It was also contended that in the cited Supreme Court case the Tripura Election Commission had asked for the deployment of central forces which is again not the case here. 

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 the city by Sunday morning at the disposal of the State Election Commission. 

"In the event, my Lords suspect that there is a fear factor in the electorate which may hinder them from coming out to vote, we can have central forces deployed in the city who will conduct route marches to allay the fears of the people", the ASG averred. "If their presence is seen in the streets of Calcutta, it may make a difference to the fear factor", it was further remarked. 

The Chief Justice enquired, "If the State requires central forces, who will they contact?". The ASG mentioned that he will be providing the contact details to the State Election Commission. 

Impugned order

Justice Rajasekhar Mantha on Thursday had declined the plea to deploy central forces for the upcoming municipal elections and had accordingly observed,

"This Court is, therefore, of the view that the assurances of the learned Advocate General, are sufficient in the light of the views of the State Election Commission. Since the State Election Commission does not see the requirement of deployment of Central Forces, this Court is not inclined to accede to the prayer of the petitioner on that score."

The petitioners who are contesting candidates in the upcoming Kolkata Municipal elections had contended before the Court that they had addressed complaints to the Commissioner of Police, Kolkata on November 30 and December 1, 2021. However, it was argued that their complaints were not responded to. Furthermore, the petitioners had also made representations to the State Election Commission and the Governor which were also placed on record. Thereafter, the instant plea had been filed before the Single Bench. 

In the impugned order the Court had noted that a communication from the Commissioner indicates that one police constable duly armed have been provided to each of the four petitioners. It was further directed that the Commissioner shall forthwith attend to any other complaints from other complainants and based on the threat perception ensure that appropriate security measures are undertaken. All steps must be taken to facilitate exercise of franchise by citizens and free, fair and peaceful Elections are held, the Court had underscored further.

Justice Mantha had also taken on record a report filed by the advocate Ratnanko Banerji appearing on behalf of the State Election Commission wherein it was stated that the Commission had held a meeting on November 13, 2021 with the Chief Secretary, ACS Home, DGP and ADG (LW) to discuss security arrangements for the upcoming elections. Furthermore, the Commissioner had addressed a letter to the Chief Secretary to ensure that adequate security arrangements are undertaken so as to ensure a free and fair election.

Accordingly, Justice Mantha had ruled,

"The steps taken and the views of the State Election Commission as set out hereinabove are clear and explicit. There is no need for Central Forces in the Elections to the Kolkata Municipal Corporation to be held on Sunday"

Background 

The Supreme Court on Monday had 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.

Earlier, the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj on Wednesday had refused to stay the upcoming Kolkata Municipal Corporation Elections pursuant to 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. The Division Bench had also directed the State government and the State Election Commission to disclose to the Court the tentative time schedule and the minimum phases required for holding elections to the remaining municipal bodies.

Furthermore, the Division Bench on Tuesday had directed the West Bengal State Election Commission to install close circuit television (CCTV) cameras in all the main and auxiliary polling booths as also in strong room where EVMs will be kept during the upcoming Kolkata Municipal Corporation Election.

Case Title: Bhartiya Janta Party v. State of West Bengal