WB Municipal Polls: Calcutta High Court Reserves Judgment In Plea Seeking Postponement Of 4 Civic Polls Amid Covid-19 Surge

The Calcutta High Court on Thursday reserved judgment in the Public Interest Litigation (PIL) petition seeking postponement of municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol in the wake of the rising number of Covid-19 cases in the State of West Bengal.

The Court also took on record a report filed by the State government and the West Bengal State Election Commission detailing the Covid-19 situation in the 4 municipalities of the State wherein municipal elections are due to take place on January 22, 2022. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj orally observed pursuant to the submissions of the concerned parties, 

"We will consider and pass orders. The order will be uploaded on the website". 

Submissions on behalf of the petitioner

Senior advocate Bikash Ranjan Bhattacharya appearing for the petitioner on the other hand argued that the submissions of the State government do not repose much confidence as the spread of Covid-19 infection can take place despite such measures being taken. "If there is this sort of accumulation of people, then there will be a chance of spreading Covid-19 infection", the senior counsel submitted further. 

He further submitted before the Court that there is close to 40 percent Covid-19 positivity rate in the State and thus the upcoming municipal elections must be deferred. He further pointed out to the Court that the report submitted by the State government and the State Election Commission do not reflect the opinion of medical authorities. He thus prayed for elections to be deferred by a month. 

At this point, the Chief Justice enquired from the counsel, "Once elections are notified, what is the scope of interference by the State?" In response, the senior counsel remarked that the State Election Commission's power to defer elections is not disputed. He further argued that the Court under Article 226 of the Constitution can also defer municipal elections in extraordinary circumstances. In this regard, he placed reliance on the Supreme Court judgment in State of Goa v. Fouziya Imitaz Shaikh. 

Submissions on behalf of the State government 

The counsel appearing for the State government apprised the Bench that a substantial number of people have already been vaccinated in the concerned municipalities. He informed the Court that in Asansol, 98 percent of the people had been given the first dose of the vaccine and 72 percent of the people had been given the second dose of the vaccine and that the Covid-19 positivity rate is 16.4 percent. It was further submitted that in Chandernagore, 98 percent of the people had been given the first dose and 95 percent of the people had been administered the second dose of the vaccine and the covid-19 positivity rate is 9 percent. 

The Court was further apprised that in Bidhannagar, 161 percent of the people had been administered the first dose and 109 percent of the people had been administered the second dose of the vaccine and that the Covid-19 positivity rate is 19.5 percent. Furthermore, in Siliguri, 123 percent of the people had been given the first dose and 92 percent of the people had been administered the second dose of the vaccine and that Covid-19 positivity rate is 16.9 percent. 

At this point, the Chief Justice enquired, "In such a situation, should elections be conducted?" In response, the counsel submitted that he would seek further instructions about the State government's clear stance on this issue. 

The State government further informed the Court that pursuant to Section 5(1) of the West Bengal State Election Commission Act, 1994, once the election dates have already been notified, the State government has no more role to play and that any further issue such as deferring of elections falls in the exclusive domain of the State Election Commission only. 

Submissions on behalf of the State Election Commission 

Senior advocate Jayanta Mitra appearing for the State Election Commission placed reliance on Section 8 of the West Bengal State Election Commission Act, 1994 and accordingly contended that the dates of the elections are fixed by the State Election Commission in consultation with the State government. 

At this point, the Chief Justice questioned, "What do you want to submit that the hands of the State Election Commission are tied when it comes to deferring of elections?" In response, the senior counsel submitted that the State Election Commission has to consult the State government even with regards to deferment of elections. "Suo Moto the State Election Commission cannot take a decision" senior counsel Mitra submitted further. Reliance was also placed on the Supreme Court decision in State of Goa v. Fouziya Imitaz Shaikh in this regard. 

At this point, the Chief Justice remarked, "We want clear submission..whether the Election Commission has the power and authority to defer the elections?" In response, the State Election Commission also categorically submitted before the Court that the Commission does not have the power to defer the election dates once the dates have been notified unless the State government declares such a disaster or an emergency which would make it impossible to hold such elections. It was further submitted that before taking any decision to defer the elections, the State Election Commission has to consult the State authorities in particular the State's Disaster Management Authority. 

Furthermore, the Chief Justice directed the senior counsel to refer to Article 243ZA of the Constitution which enumerates, "The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K". Accordingly, the Chief Justice remarked, "Inspite of this, your stand is that the State Election Commission cannot defer it?"  The senior counsel responded in the affirmative. 

The Chief Justice further enquired from the State Election Commission as to whether sufficient number of persons free from Covid infection are available for deployment on different booths for the purpose of holding elections. In response, the Court was apprised that there are adequate number of polling personnel. It was further submitted that 12400 polling personnel have been deployed and 2800 polling personnel have been kept in reserve in case of emergency. The Court was also informed that adequate number of medical officers and ASHA workers have also been deployed in case of any medical emergency. 

"All possible steps have been taken to ensure that security of people are not jeopardised", the senior counsel submitted further. 

Case Title - Bimal Bhattacharya vs. State of West Bengal & Ors