Calcutta High Court Rejects State's Argument That Police Can't Be Held Responsible For Post-Poll Violence Due To ECI's Model Code Of Conduct

The Calcutta High Court on Thursday handed over to the Central Bureau of Investigation(CBI) the investigation of cases pertaining to murder, rape and crimes against women which had allegedly taken place in the State of West Bengal in May 2021 soon after the declaration of the 2021 West Bengal Assembly election results. Acting Chief Justice Rajesh Bindal delivered the lead judgment whereas Justices I.P Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar delivered separate but concurring judgments.

Advocate General Kishore Datta during the hearings had submitted before the Court that the State police authorities must not be held responsible for cases pertaining to post poll violence before May 3, 2021 as the entire State police force had been under the control and supervision of the Election Commission of India until then. Immediately after the announcement of the election dates, the Model Code of Conduct had been brought into effect by the Election Commission and was subsequently lifted on May 5, 2021 after the declaration of results.

To this, Acting Chief Justice Bindal observed that such an 'argument deserves to be rejected outrightly'. He also opined that the Advocate General had not relied on any provision of law or statutory rules to bolster his argument.

"Civil or police administration is under the control of the Election Commission during the process of elections only to ensure free and fair elections. That does not mean that the police stop discharging its normal duties to control law and order. This arguments runs contrary to even the stand of the State where it claimed that number of FIRs were registered upto May 03, 2021 for post poll violence and otherwise also for normal crime in state the police was duty bound to maintain law and order and register FIRs and not the Election Commission"

Justice Bindal further observed that there had been nothing placed on record by the State to show that even normal law and order, and registration of criminal cases comes within the purview of the Election Commission.

"Constitutional obligations of the State do not get vested in the Election Commission during the process of elections", Justice Bindal reiterated.

Election Commission Should Have Played A More 'Positive Role' In Abating Crimes 

However, Justice I.P Mukerji in his concurring judgment noted that it was the duty of the Election Commission to oversee the registration of complaints until May 5, 2021 and that it should have played a more 'positive role' to abate the occurrence of crimes. Accordingly he observed,

"The submission of the Election Commission is absolutely right that conduct of elections was with the Election Commission but the administration was with the government. The Election Commission, in my opinion, is theoretically correct. But, it is also true that the Election Commission had directed the administration to transfer officials with administrative duties and post them according to its direction at the time when it was in charge of the election. If offences had occurred as a consequence of the polls, it was also the duty of the Election Commission at least to direct or advise the administration to register the complaints which it did not"

Furthermore, Justice Mukerji noted that it was not out of place on the part of the Election Commission to instruct the administration to take steps in order to keep crimes in check.

"The records show that the incident of crime declined after 5th May, 2021. If not anything else, it does not show any intention on the part of the ruling party to promote political violence", he further observed.

Case Title: Anindya Sundar Das v. Union of India and other connected matters

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