BREAKING : Calcutta High Court Refuses To Interfere With Bhabanipur Bypolls Date; Admonishes Chief Secretary For Writing To ECI To Expedite Elections [Read Order]

The Calcutta High Court on Tuesday dismissed a challenge made to the decision of the Election Commission of India (ECI) to prioritize the bye-elections of Bhabanipur Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee is set to contest on September 30.

A Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj however passed adverse comments against the Chief Secretary of the West Bengal Government for writing to the ECI seeking to expedite the Bhabanipur bypolls. 

The Chief Secretary had requested the ECI to conduct the by-polls of the Bhabanipur Assembly Constituency on an urgent basis by contending that if the election process is not expedited then there would be 'vacuum in the top executive' resulting in a 'constitutional crisis' in the State. Importantly, the Chief Secretary had mentioned in the letter that Chief Minister Mamata Banerjee would be contesting the by-poll in Bhabanipur. 

In this regard, the ECI had issued a notification on September 6 stipulating that the by-election would be conducted for the 159-Bhabanipur Assembly Constituency on September 30, underscoring the exigency and special request received from the Chief Secretary, Government of West Bengal to hold the by-election.

Expressing strong reservations against the conduct of the Chief Secretary, the Bench observed, 

"The most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be constitutional crisis in case election to Bhabanipur Constituency is not held from where respondent No. 5 wants to contest election. What constitutional crisis the Government could face with one person losing or winning election, was not explained. How the Chief Secretary knew that the respondent No. 5 was to contest election from Bhabanipur Assembly Constituency? He was not a party spokesman or a returning officer."

It was further noted that the ECI had decided to not hold by-elections for other 31 Assembly Constituencies and 3 Parliamentary Constituencies. Only the request of the Chief Secretary of the State of West Bengal for holding election in the Bhabanipur Assembly Constituency was accepted, the Court noted. 

Opining further on the conduct of the Chief Secretary and his remark that there would be a 'constitutional crisis' in the State if the by-polls are not expedited, the Court remarked, 

"We record our strong reservation about the conduct of the Chief Secretary in writing a letter to the Election Commission stating that there would be 'constitutional crisis' in case by-election to the Bhabanipur Constituency is not held. He is a public servant, who is to discharge his duties in terms of provisions of law, whosoever may be in power. He is not to ensure that any particular person should come in power and in the absence there would be 'constitutional crisis"

The Chief Secretary in his letter had also informed the ECI that the Covid-19 situation in the State was under control and thus the impending by-polls could be held. He had further stated that the flood situation in the State had not affected the poll bound Assembly constituencies. 

Objecting to such averments, the Bench observed, 

"The information furnished by the Chief Secretary of the State to the Election Commission was contrary to the facts as in the State restrictions on account of COVID-19 pandemic had been extended up to September 30, 2021 vide order dated September 15, 2021. Further the Election Commission was also misled regarding flood situation. It is known to all that there had been excessive rains in the State."

The Court however declined to interfere with the decision of the ECI to hold the Bhabanipur Assembly constituency elections at this stage. 

"As the process of election was initiated with the issuance of press note dated September 04, 2021 and the polling has to be held on September 30, 2021 we do not find it appropriate to interfere with the decision of the Commission to hold by-election to Bhabanipur Assembly Constituency at this stage", the Court opined. 

The Court also refused to record any finding on the issue that an election petition may or may not be maintainable after the result of the Assembly is declared. It was held that any of the losing party shall have the right to avail of his/her appropriate remedy to challenge the election on the grounds available in law. 

The bench will hear on November 17 the second issue whether the public should bear costs of by-elections, which was necessitated following the resignation of TMC MLA Sovandeb Chattopadhyay to facilitate Chief Minister Mamata Banerjee's election to the Assembly after she lost while contesting elections from Nandigram during the 2021 Assembly Elections. 

On the previous date of hearing, ACJ Bindal had opined that a 'few crores' are required to conduct by-elections and thus questioned as to why such costs must be borne by the public exchequer.

"After election, someone resigns and vacates the seat for someone else to fight the elections. Why will the public bear the cost? ", ACJ Bindal had further remarked.

Background of the petition

The bench passed the order in the Public Interest Litigation (PIL) petition moved by Sayan Banerjee, through Advocate Ankur Sharma questioning the request made by the Chief Secretary of the Government of West Bengal, to the Election Commission to hold the bye-elections in 159-Bhabanipur Assembly Constituency, 'in view of administrative exigencies and public interest and to avoid a vacuum in the State'. It contended that the priority to hold the bye-elections amidst Covid-19 pandemic is based on unreasonable, mala fide and undue influence caused by an unelected Chief Minister to interfere with the free and fair democratic process of elections.

Referring to the letter of the Chief Secretary of the Government of West Bengal, the Election Commission, while issuing bye-poll notification had issued a statement which is as follows,

"While the Commission has decided not to hold by-elections in other 31 Assembly constituencies across the country, considering the constitutional exigency and special request from the state of West Bengal, it has decided to hold the by-election in Bhowanipore."

Case Title: Sayan Banerjee v. The Election Commission of India and Ors

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