Contai Municipal Polls: Supreme Court Stays Calcutta High Court's Direction For CFSL Audit Of CCTV Cameras

A bench of Justices DY Chandrachud and Surya Kant issued notice in the petition filed by the West Bengal State Election Commission to consider the question of law as to whether the directions by the High Court can substitute the procedure provided by law.

"High Court is dealing with post electoral intervention and that has to be by process of law and this will set dangerous precedent across the political spectrum. This will be extremely dangerous in a PIL. As a constitutional court we are not only concerned about the Contai elections," remarked Justice Chandrachud.

Accordingly the bench in their order said, "We have heard Senior Advocate Rakesh Dwivedi for the West Bengal State Election Commission and Mr PS Patwalia, Senior Counsel for the Respondent. The submission which has been urged is that by issuing slew of directions including for the conducting of forensic audit by CFSL, the High Court has on one hand transgressed the limits of its jurisdiction under art 226 after election process has been concluded and results have been concluded. The issue as to whether the direction by the High Court can substitute the procedure provided by law would merit further consideration. In order to enable the court to do so, we issue notice. Mr Patwalia accepts notice and the CA shall be filed. Pending further orders, there shall be stay of the High Court order and stay of further proceedings before the High Court."

The Top Court issued the directions while considering the Special Leave Petition assailing Calcutta High Court's order dated April 26, 2022 passed by the bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj while 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.

The High Court directed the State Election Commission to send the CCTV footage of Contai Municipal Election for forensic audit to CFSL, Delhi within 10 days as well as duly mark the concerned polling booth number to which each CCTV camera footage relates before handing the same to CFSL, New Delhi.

What Transpired In The Supreme Court Today?

Assailing the High Court's order, Senior Advocate Rakesh Dwivedi at the outset submitted that by issuing slew of directions including for the conducting of forensic audit by CFSL, the High Court has transgressed the limits of its jurisdiction under Article 226 after election process has been concluded and results have been concluded.

Referring to the order dated March 11, 2022 wherein counsel appearing for the State Election Commission had not objected to the prayer made for forensic audit of the CCTV footage by the petitioner, Justice DY Chandrachud the presiding judge of the bench said, "You consented to the Forensic Audit on March 11, 2022."

"Yes but that was the counsel's error," replied Dwivedi.

"This is only an interim direction by the court and no other direction has been made by the court. It appears that there has been serious irregularities if the court is intervening," remarked Justice Chandrachud.

Senior Advocate Rakesh Dwivedi at this juncture further contended that for issuing such a direction, the court must prima facie come to the finding that the CCTV was tampered with.

Questioning the issuance of direction for conducting forensic audit, he said, "Somebody has to come to finding that the footage is tampered. Why forensic audit? One can appreciate that but here is a case where FA without any prima facie finding. Neither the electors nor the members have challenged the same and here is a PIL for 8 wards only. I can understand that you want to look into the 8 wards but 82 wards, there is something exceptional."

Appearing for Soumendu Adhikari, Senior Advocate Paramjit Singh Patwalia contended that the impugned order is one among a long series of orders which had started in 2021.

Drawing the court's attention to the various orders that were issued by the High Court on December 19, 2021, December 23, 2021 and February 10, 2021 which were passed in relation to the elections that were conducted in 3 phases in the State Senior Counsel said, " "After the 22nd January elections, again it happened, on Feb 10, 2022 we again said that the 3rd phase is happening and there would be problems. The court recorded our claim that CCTV cameras are there and they will remain. They put the responsibility on the Chief Election Commission that he would examine & ensure that in case central para military forces are required then they would be there. Again we go on February 16 by an application. So it's the 4th or 5th time that the court is seized of that matter and notice is issued on 23rd Feb.

Now on the23rd Feb, the court examines it and finds that the chief election commissioner did nothing. Newspapers carry reports of reporters being assaulted and then the court said that you will have an observer who will be an IAS outside the WB Cadre. Now again when the election takes place, CEC decides no paramilitary force. After 11 no polling was allowed to take place and out of 97 cameras, 91 were destroyed and the court issued notice, discussed the matter and heard it in great detail. Matter was argued at great length and all their objections were considered by the court and it was agreed that the matter needs to be examined further. After detailed hearing CEC concedes to audit and we are saying that he is not behaving in a free and fair manner. Kindly see EC's response and they also don't say it is completely fair."

On considering the submissions made by Senior Counsel, the bench asked Senior Counsel to apprise the bench of the prayers which were sought in the PIL before the Calcutta High Court.

"This was filed after the polling was complete? You can't in the form of PIL substitute an election petition challenging the validity of the poll," remarked Justice Chandrachud after being apprised of the prayers in the PIL.

"It's not PIL but Election Petition basically," Justice Kant remarked.

Referring to the series of orders which were passed by the bench in the matters pertaining to the elections in Tripura, West Bengal, Justice Chandrachud said, "At the interim stage in Tripura, West Bengal there were directions to appoint observers, now if your allegation is that the election has not been free and fair you can't just now subvert the election process by going to the court under Article 226."

Commenting on Adhikari's locus to prefer a PIL, Justice Kant said, "Are you a candidate? Candidate of your party who has lost, has he filed any Election Petition? Answer is NO. To the extent the HC was making arrangements for free and fair elections, that was fair enough."

Pursuant to considering the orders that were passed by the Calcutta High Court for ensuring free and fair elections, Justice Chandrachud that a due process of law had to be followed for challenging the elections which have been concluded and of which results have been announced.

"First phases of elections were 19/12 and the first order was 17/12, the 3rd order was 10 February and these orders were passed to ensure free & fair elections. Once the elections have been concluded, any challenge is to be made by following the process of law.  Once the results are declared, this is an election petition without an election petition being filed by anybody. This is not really a contempt petition. Challenges to election can be on the ground of booth capturing," the judge said.

"High Court can't collect the evidence in the name of PIL," remarked Justice Kant.

On Senior Advocate's response that the report of the forensic audit would come in a sealed cover, Justice Chandrachud said, "The sealed cover business is very dubious. High Court is dealing with post electoral intervention and that has to be by process of law and this will set dangerous precedent across the political spectrum. This will be extremely dangerous in a PIL. As a constitutional court we are not only concerned about the Contai elections. Your relief in the PIL is to set aside the elections."

"These are all serious disputed facts which have to be proved in an election petition," Justice Kant further added.

"High Court refers to the constitutional bar and it's doing exactly what is barred. We also need to ensure that the election process cant be tinkered with. We'll issue a notice. This has to be set aside straight away but we can issue notice," remarked Justice Chandrachud while setting aside the High Court's order and issuing notice to examine whether the High Court could issue directions under Article 226 by substituting the procedure laid down by law.

Case Title: West Bengal State Election Commission v Soumendu Adhikari| SLP (C) 8359/2022