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

The West Bengal government and the State Election Commission on Tuesday opposed the prayer of the BJP that a forensic audit of the CCTV cameras used during the recently concluded Contai Municipality elections should be conducted by an independent agency such as Central Forensic Science Laboratory (CFSL), New Delhi. 

The Calcutta High 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 in 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 had earlier instructed the Election Commission of India (ECI) to apprise the Court whether forensic audit of CCTV cameras used during the Contai Municipality elections can be conducted by it through some independent agency.

On the last date of hearing, the counsel for the ECI had submitted before the Bench a communication sent by the Under Secretary of the ECI stipulating that the ECI has no prior experience in conducting such forensic audit of CCTV camera which was stated to be a specialised function. Accordingly, the ECI had declined to conduct a forensic audit of the CCTV cameras. 

On Tuesday, senior advocate Paramjit Patwalia appearing for Adhikari prayed before the Court that a forensic audit of the CCTV cameras should be conducted by a central agency such as the CFSL, New Delhi. He further submitted that it must be discerned whether the CCTV cameras were operational and whether any violence took place as alleged. 

However, such a prayer was vehemently objected to by senior advocate Jayanta Mitra appearing for the SEC by contending that since the main prayers in the writ petition cannot be granted due to the constitutional bar under Article 243-ZG (b) of the Constitution of India, a direction for issuing interim orders can also not be sustained. Article 243-ZG (b) prohibits any election to any municipality to be called in question except by way of an election petition filed before the appropriate authority. 

The senior counsel further pointed out that the Court in its order dated March 1, 2022 had categorically recorded that all points in the writ petition will be left open. It was further averred that since the instant case involves disputed questions of facts, remedy must be sought by filing an election petition instead of initiating proceedings under Article 226 of the Constitution. Reliance was also placed on Section 78 of the West Bengal Municipal Elections, 1994 which prohibits Courts from entertaining any application pertaining to the election to any municipality. 

Senior advocate Mitra also referred to a host of Supreme Court decisions in this regard. Reliance was placed on Supreme Court decisions in Jaspal Singh Arora v. State Of M.P, State of Goa v. Fouziya Imtiaz Shaikh and Laxmi Bai v. the Collector to contend that there is a bar to the interference by Courts in electoral matters pursuant to Article 243-ZG of the Constitution.

Mirroring the submissions of the State Election Commission, Advocate General S.N Mookherjee appearing for the State Government also averred that when the Court does not have the jurisdiction to grant final relief, no such interim relief can be granted either. It was further submitted that the main prayer sought for cannot be granted in a proceeding under Article 226 of the Constitution. Reliance was also placed on a host of Supreme Court decisions in this regard. 

Pursuant to a perusal of the submissions, the Court granted a short adjournment to senior advocate Paramjit Patwalia to respond to the rival submissions. Accordingly, the Court adjourned the matter for further hearing on April 7. 

Background

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 a month back.

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.

Case Title: Soumendu Adhikari v. State of West Bengal