BREAKING| Contai Municipality Polls: Calcutta HC Orders CFSL To Conduct Forensic Audit Of CCTV Cameras, Report To Be Submitted Within 6 Weeks

The Calcutta High Court on Tuesday directed Central Forensic Science Laboratory (CFSL), New Delhi to conduct a forensic audit of the CCTV cameras that were used during the recently concluded Contai Municipality elections. 

The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by BJP leader Soumendu Adhikari alleging that large scale violence and rigging of votes had taken place during the recently concluded Contai Municipality elections. Elections to 108 municipalities in the State including the Contai municipality took place on February 27.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj while reading out the operative portion of the order on Tuesday observed that notwithstanding the constitutional bar under Article 243-ZG (b) of the Constitution of India, such a direction is required in the 'larger public interest' and to uphold democratic principles. 

"..we are of the opinion that not only to ascertain the compliance of earlier orders of this Court but in the larger public interest and to uphold democratic principles, it is necessary to get forensic audit of CCTV footage of Contai Municipal Election done", the Court underscored. 

Accordingly, the Court directed the State Election Commission to send the CCTV footage of Contai Municipal Election for forensic audit to CFSL, Delhi within 10 days. The State Election Commission had earlier been directed to take adequate steps to preserve CCTV cameras and CCTV footage pertaining to elections of the Contai municipality.

The State Election Commission was also ordered to duly mark the concerned polling booth number to which each CCTV camera footage relates before handing the same to CFSL, New Delhi. 

"..the CFSL will carry out the forensic audit of CCTV footage and ascertain if booth capturing, EVM tampering, forged voting (chhapa voting), violence, etc. had taken place in the respective polling booth", the Court ordered further. 

Furthermore, CFSL also was also given liberty to take the help of any other independent agency in the process or seek other documents from State Election Commission which have been preserved by an earlier order of the Court, if required, with the prior permission of the Court. After the forensic audit, CFSL, Delhi was further ordered to safely return the CCTV footage to Commissioner, West Bengal Election Commission in a sealed cover. 

A forensic audit report was directed to be submitted by CFSL, Delhi in this regard within a period of 6 weeks. The matter is slated for further hearing on June 13. 

The Court further observed that although there is no dispute that the election of a municipality cannot be called in question except by way of an election petition, the scope of the present case is different as the Court is not considering the prayer for setting aside the election but only intending to ascertain if the assurance given to the Court by the State Election Commissioner while opposing the prayer for deployment of the paramilitary forces has been fulfilled and free and fair elections have been held.

Pertinently, the Court noted that on March 11 while adjudicating upon this plea, counsel appearing for the State Election Commission had not objected to the prayer made for forensic audit of the CCTV footage by the petitioner and such an averment had also even recorded in the order. 

Opining that subsequently opposing such a prayer runs contrary to the State Election Commission's object of holding and ensuring free and fair elections, the Court remarked, 

"The State Election Commission in the earlier proceeding had clearly recorded their no objection for forensic audit, therefore, now the State Election Commissioner is not justified in changing the stand and opposing the prayer. The changed stand of the State Election Commission runs counter to its object of holding and ensuring free and fair election. This Court fails to understand as to why the State Election Commission does not want to ascertain if free and fair elections were held or if the allegation of large scale booth capturing, forged voting, etc. is correct"

Placing reliance on a host of Supreme Court judgements, the Court further averred that in such matters judicial review under Article 226 of the Constitution is ordinarily excluded but it is not wholly excluded.

Background 

The Election Commission of India (ECI) had earlier declined to conduct the forensic audit of the CCTV cameras used in the municipal polls by underscoring that it has no prior experience in conducting such an exercise and that the State Election Commission has the sole Constitutional mandate to oversee such exercises pertaining to the municipal polls. 

According to various newspaper reports, the civic polls to 108 municipalities in West Bengal was marred by widespread violence. It was reported that throughout the day yesterday, reports of intimidation allegedly by the ruling Trinamool Congress (TMC) workers, electoral malpractices and attack on journalists emerged from various parts of the State.

The Court had earlier directed the State Election Commission (SEC) to collect information in respect of the conditions prevailing in each of the Municipalities where the elections are scheduled and hold a joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours. The SEC had also been directed to examine the ground situation of each of the 108 Municipalities and take a decision in writing with respect to the deployment of central paramilitary forces.

Opining that the State Election Commissioner will be personally liable if violence takes place, the Court had further ruled, "If the Commissioner, State Election Commission takes the decision not to deploy the paramilitary forces, then he will be personally liable to ensure no violence takes place and free, fair and fearless elections take place in the municipality where paramilitary forces are not".

Subsequently, the SEC had decided to not deploy central paramilitary forces during the civic polls. The Court had been adjudicating upon a plea moved by the BJP alleging that large scale violence and rigging of votes took place during the recently conducted elections to 4 municipalities in West Bengal and accordingly sought for deployment of central forces for the upcoming elections to the remaining 108 municipalities.

Elections to four municipal corporations – Siliguri, Bidhannagar, Asansol and Chandernagore took place on February 12. Polls to these four municipal corporations were postponed at the instructions of the High Court considering the spike in COVID-19 infections. 

Subsequently, a Division Bench of the Supreme Court comprising Justice DY Chandrachud and Justice Surya Kant had dismissed the special leave petition filed against the decision of the Calcutta High Court which had declined to issue directions for the deployment of central forces for the upcoming elections to to the remaining 108 municipalities of West Bengal which took place on February 27.

The Court had earlier directed the State Election Commission to hold a joint meeting with the Chief Secretary and Home Secretary of the State as well as the Director General and Inspector General of Police within 12 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the Bidhannagar Municipal Corporation.

Opining that the Commissioner of the State Election Commission will be held personally liable to ensure that no violence takes place, the Court had further directed, "In case, if the Commissioner, State Election Commission forms an opinion that deployment of the paramilitary forces during Bidhannagar Municipal Corporation election is not necessary, then he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held in Bidhannagar."

The State Election Commission had subsequently decided to not deploy central forces for the elections to the 4 municipal corporations.

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.

Also Read: Contai Municipality Polls| 'Constitutional Bar': SEC & WB Gov Opposes BJP's Prayer Seeking Forensic Audit Of CCTV Cameras By CFSL

Case Title: Soumendu Adhikari v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 142

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