Calcutta High Court (Appellete Side)
Adhir Ranjan Chowdhury vs West Bengal State Election Commission & ... on 10 May, 2018
Author: Arijit Banerjee
Bench: Jyoritmay Bhattacharya, Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 4613(W) of 2018
CAN 2550 of 2018
CAN 2522 of 2018
CAN 2318 of 2018
CAN 2713 of 2018
Adhir Ranjan Chowdhury
-Vs.-
West Bengal State Election Commission & Ors.
With
WP 4691(W) of 2018
Sarkari Karmachari Parisad & Ors.
-Vs.-
The State of West Bengal & Anr.
With
WP 4701(W) of 2018
CAN 2314 of 2018
Sridhar Chandra Bagari
-Vs.-
The State of West Bengal & Ors.
With
WP 5415 (W) of 2018
Anindya Sundar Das
-vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble The Chief Justice Mr. Jyoritmay Bhattacharya
&
The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Adhir Ranjan Chowdhury, (In person)
(In WP 4613 (W) Of 2018) Mr. Pratip Chatterjee, Adv.
Mr. Ritzu Ghosal, Adv.
Mr. Anil Kr. Das, Adv.
Mr. Mrityunjoy Chatterjee, Adv.
For the UOI : Mr. Kaushik Chanda, Ld. Addl. Solicitor General,
Mr. Tarun Jyoti Tewari, Adv. Adv.
For the Election Commission : Mr. Shaktinath Mukherjee, Sr. Adv.
(in all the writ petitions) Mr. Nayan Bihani, Adv.
Ms. Anuradha Sengupta, Adv.
For the State : Mr. Kishore Datta, Ld. A. G.
(In all the writ petitions) Mr. Abhratosh Majumdar, Ld. AAG
Mr. T. M. Siddiqui, Adv.
Mr. Subhabrata Dutta, Adv.
Mr. Nilatpal Chatterjee, Adv.
For the Petitioner : Mr. Indrajeet Dasgupta, Adv.
(In WP 4691(W) of 2018)
For the Petitioners : Mr. Sridhar Chandra Bagari, (In person)
(In WP 4701(W) of 2018)
For the AITC : Mr. Kalyan Bandopadhyay, Ld. Sr. Adv.
(In WP 4701(W) of 2018 Mr. A. Kumar Nag, Adv.
and in CAN 2318 of 2018)
For the Petitioner : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
(In WP 5415(W) of 2018) Mr. Rabi Sankar Chattopadhyay, Adv.
Ms. Sumita Sarkar, Adv.
Ms. Swarnali Sengupta, Adv.
Ms. Avipsa Sarkar, Adv.
For the applicant : Mr. Sabyasachi Chatterjee, Adv.
(In CAN No. 2550 of 2018 Md. Firdous Samim, Adv.
and in CAN No. 2713 of 2018) Mr. Sourav Mondal, Adv.
Mr. Debarshi Amin, Adv.
For the applicant : Mr. L. K. Gupta, Sr. Adv
(In CAN 2522 of 2018) Mr. Debasis Saha, Adv.
Mr. Brajesh Jha, Adv.
Mr. Amit Sarkar, Adv.
Heard On : 13.04.2018, 18.04.2018, 24.04.2018, 27.04.2018
CAV On : 08.05.2018
Judgment On : 10.05.2018
Arijit Banerjee, J:-
(1) These four writ petitions involve similar issues of fact and law and have
accordingly been taken up together for hearing and disposal.
(2) The basic demand of the petitioners is that the ensuing Panchayat Elections in
West Bengal should be conducted in a free and fair manner. They allege that to
eliminate contest and competition the cadres of the ruling party are physically
obstructing candidates of other political parties who intend to contest the election
from filing their nomination papers. The petitioners also pray for deployment of
Central Forces for ensuring peaceful and transparent election.
Re: WP 4613 (W) of 2018:-
(3) The petitioner in this writ petition is the state president of the Indian National
Congress Party. The main prayers in this writ petition are as follows:-
"(a) (i) Writ in the nature of Mandamus commanding the
respondents specially the respondent nos. 2 & 3 to set aside
and/or quash and/or cancel the notification bearing Nos.
515 - SEC/1E-88/2017 dt. 02.04.18, 516 - SEC/1E-
88/2017 dt. 2.4.18 & 517 - SEC/1E-88/2017 dt. 2.4.18
being Annexure - 'P-2' of this writ petition and after set
aside and/or quashing and/or cancelling the same directing
the said respondents to issue a fresh notification by
extending the schedule of election from beginning to end
i.e. from filing the nomination paper to the date of poll
forthwith;
(ii) Writ in the nature of Mandamus commanding the
respondents specially the respondent no. 3 for taking
immediate steps for deployment of Central Forces and
officials from the date of filling nomination paper to the
date of poll and counting forthwith;
(iii) To direct the respondent no. 3 to ensure to file the
nomination paper by the contesting candidates, if
necessary, b a direction for filing nomination before the
State Election Commissioner and/or concerned District
Magistrate of the concerned district who in turn send the
same to the concerned places by taking the process of
internet;
(c) Writ in the nature of Prohibition prohibiting the
respondents from taking any steps and/or further steps as
per the schedule given in the notification dt. 2nd April,
2018;"
(4) The basic allegation of the petitioner is that the cadres of the ruling party are
scaring away intending candidates from other political parties by meting out threats
of dire consequences and also by resorting to violence. It was submitted that in
spite of complaints being made to the Election Commission, no steps have been
taken by the said authority.
(5) Appearing for the State, learned Advocate General took a preliminary point
that the writ petition is not maintainable as Public Interest Litigation (in short 'PIL').
He referred to our order dated 6 April, 2018 wherein it was recorded that the
maintainability point is left open. He submitted that the petitioner being the
president of a political party and being interested in the outcome of the election, he
cannot maintain the present PIL. Further, the present writ petition is politically
motivated, submitted Learned Adv. General. He referred to Rule 56 of the Writ
Rules framed by this Court which defines PIL. The said Rule reads as follows:-
"56. Definition of Public Interest Litigation:- Public
Interest Litigation shall include a litigation the subject
matter of which is a legal wrong or a legal injury caused to
a person or to a determinate class of persons by reason of
violation of a constitutional or legal right or any burden
imposed in contravention of any constitutional or legal
provision or without authority of law or any such legal
wrong or legal injury or illegal burden is threatened and
such person or determinate class of persons is, by reason of
poverty, helplessness of disability of socially or
economically disadvantaged position, unable to approach
the Court for relief, and for redressal of which any member
of the public not having any personal interest in the subject
matter presents an application for an appropriate
direction, order or writ in this Court under Article 226.
Notwithstanding anything contained above, in any
appropriate case, though the petitioner might have moved a
court in his private interest and for redressal of personal
grievances, the Court in furtherance of the public interest
involved therein may treat the subject of litigation in the
interest of justice as a public interest litigation."
(6) Learned Advocate General submitted that the persons for whose benefit the
present PIL has been instituted do not fall within the class of people contemplated in
the aforesaid rule. It is not that the persons who are allegedly affected by alleged
wrongful acts of the members of the ruling party, cannot approach the Court with
their grievance. They are under no disability or in no disadvantageous position
which warrants institution of a PIL for their benefit. In this connection learned
Advocte General referred to a decision of the Apex Court in Janata Dal-vs.-H.S.
Chowdhary & Anr., (1992) 4 SCC 305, and submitted that only a person acting
bona fide and having sufficient interest in the proceeding of PIL will have a locus
standi and can approach the Court to wipe out the tears of the poor and needy,
suffering from violation of their fundamental rights, but not a person for personal
gain or private profit or political motive or any oblique consideration. A vexatious
petition under the guise of PIL brought before the Court for vindicating any personal
grievance should be rejected at the threshold. He then referred to the decision of the
Apex Court in the case of Common Cause (A Regd. Society)-vs.-Union of India &
Ors., (2008) 5 SCC 511, in support of the submission that no PIL lies to
enforce/protect political interest. He also relied on the Apex Court decision in
Dattaraj Nathuji Thaware-vs.-State of Maharashtra & Ors., (2005) 1 SCC 590,
in support of the submission that public interest litigation is a weapon which has to
be used with great care and circumspection and judiciary has to be extremely careful
to see that behind the beautiful veil of public interest, an ugly private malice, vested
interest and/or publicity seeking is not lurking. It has to be used as an effective
weapon in the armoury of law for delivering social justice to citizens. A PIL should
not be 'politics interest litigation.'
(7) The next point urged by Learned Advocate General was that there is a
constitutional bar to the maintainability of the present writ petition. He referred to
Art. 243-O of the Constitution of India which is in pari materia with Art. 329 of the
Constitution of India. Art. 243-O reads as follows:-
"A. 243-O:- Bar to interference by courts in electoral
matters_Notwithstanding anything in this Constitution-(a)
the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
Article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question
except by an election petition presented to such authority
and in such manner as is provided for by or under any law
made by the Legislature of a State."
(8) Learned Advocate General also referred to Secs. 79 and 93(1)(d) of the West
Bengal Panchayat Elections Act, 2003. He submitted that on a conjoint reading of
the said sections an aggrieved candidate may challenge the election of a returned
candidate after completion of the election process before the appropriate forum by
way of an election petition. The jurisdiction of civil courts is barred. The courts
including the writ court cannot interfere with the process of election and cannot pass
any order which may have the effect of delaying or stalling the election process. In
this connection, Ld. Adv. General relied on the following three decisions:-
(i) N. P. Ponnuswami-vs.-Returning Officer, Namakkal Constituency,
Namakkal, Salem Dist. And Four Others, AIR 1952 SC 64.
(ii) Election Commission of India-vs.-Shivaji And Ors., (1988) 1 SCC 277.
(iii) Gurdeep Singh Dhillon-vs.-Satpal and Ors., (2006) 10 SCC 616.
(9) The third preliminary objection raised by the Learned Advocate General is that
the writ petition has become infructuous because of subsequent developments. The
notifications that were challenged by filing the present writ application have lost their
force. Fresh notifications have been issued. By virtue of the notification dated 26
April, 2018, the polling date has been fixed on 14 May, 2018. Such notification is
not under challenge.
(10) The petitioner who appeared in person submitted that he has filed the present
PIL for protection of the democratic rights of the people of West Bengal. He has no
individual interest in the matter. He is only trying to ensure exercise of franchise
freely by curbing/suppressing violence. The petitioner submitted that the police
authorities are acting in connivance with the ruling Government. The Election
Commission is playing second fiddle to the State Government. 34 per cent of the
Panchayat seats have been declared to be uncontested and the candidates of the ruling
party have already been declared elected from such seats. This is a mockery of
democracy. The petitioner relied on the decision of the Apex Court in the case of
Desiya Murpokku Dravida Kazhagam & Anr.-vs.-The Election Commission of
India, AIR 1952 SC 2191, and submitted that the right of election is the very
essence of the Constitution. The heart of the parliamentary system is free and fair
elections periodically held, based on adult franchise. He further referred to
paragraph 31 of the said judgment which reads as follows:-
"31. To ensure the conduct of periodic elections to these
various legislative bodies, the Election Commission is
established by the Constitution. It is endowed with such
powers necessary to enable the same to function as an
independent constitutional entity to discharge the
constitutional obligations entrusted to it untrammelled by
the authority of the Executive12. This entire scheme of a
representative democracy enshrined in the Constitution is
for the purpose of achieving the constitutional goal of
establishing a Democratic Republic adumbrated in the
preamble to the Constitution. It is in this background, this
Court held in Mohinder Singh Gill and Anr. (supra), that
the heart of parliamentary system is free and fair elections
periodically held based on adult franchise."
(11) The petitioner then referred to the Apex Court judgment in People's Union of
Civil Liberties (P.U.C.L.) & Anr-vs.-Union of India & Anr., AIR 2003 SC 2363,
wherein the Apex Court observed that ballot is the instrument by which the voter
expresses his choice between candidates or in respect to propositions and his vote is
his choice or election as expressed by his ballot. The fundamental right of freedom
of speech and expression should be broadly construed and it has been so construed
all these years. Freedom of expressing preference for a candidate is nothing but a
freedom of expressing oneself in relation to a matter of prime concern to the country
and the voter himself. The right to vote for the candidate of one's choice is of the
essence of democratic polity. This right is recognized by our Constitution and it has
given effect to in specific form by the Representation of the People Act.
(12) The petitioner also referred to the Apex Court decision in Rajbala & Ors.-vs.-
State of Haryana & Ors., AIR 2016 SC 33, in support of his submission that every
citizen has a right to contest all elections subject to he possessing basic minimum
qualifications prescribed by the Constitution. The petitioner finally referred to the
decision of the Apex Court in Election Commission of India Through Secretary-
vs.-Ashok Kumar & Ors., (2000) 8 SCC 216, and in particular relied on paragraph
32 of the reported judgment which reads as follows:-
"32. For convenience sake we would now generally sum up
our conclusions by partly restating what the two
Constitution Benches have already said and then adding by
clarifying what follows therefrom in view of the analysis
made by us hereinabove:
(1) If an election, (the term election being widely
interpreted so as to include all steps and entire
proceedings commencing from the date of notification of
election till the date of declaration of result) is to be
called in question and which questioning may have the
effect interrupting, obstructing or protracting the
election proceedings in any manner, the invoking of
judicial remedy has to be postponed till after the
completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to
'calling in question an election' if it subserves the
progress of the election and facilitates the completion of
the election. Anything done towards completing or in
furtherance of the election proceedings cannot be
described as questioning the election.
(3) Subject to the above, the action taken or orders issued
by Election Commission are open to judicial review on
the well-settled parameters which enable judicial review
of decisions of statutory bodies such as on a case of
mala fide or arbitrary exercise of power being made out
or the statutory body being shown to have acted in
breach of law.
(4) Without interrupting, obstructing or delaying the
progress of the election proceedings, judicial
intervention is available if assistance of the court has
been sought for merely to correct or smoothen the
progress of the election proceedings, to remove the
obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or
rendered irretrievable by the time the result are
declared and stage is set for invoking the jurisdiction of
the court.
(5) The court must be very circumspect and act with caution
while entertaining any election dispute though not hit by
the bar of article 329(b) but brought to it during the
pendency of election proceedings. The court must
guard against any attempt at retarding, interrupting,
protracting or stalling of the election proceedings.
Care has to be taken to see that there is no attempt to
utilize the Court's indulgence by filing a petition
outwardly innocuous but essentially a subterfuge or
pretext for achieving an ulterior or hidden end.
Needless to say that in the very nature of the things the
court would act with reluctance and shall not act, except
on a clear and strong case for its intervention having
been made out by raising the pleas with particulars and
precision and supporting the same by necessary
material.
(13) In support of his prayer for deployment of Central Forces the petitioner
submitted that there is insufficient force in the State to conduct/conclude the three
tier Panchayat Election peacefully. However, the State Election Commission has
not asked the Central Government to deploy forces for conducting the West Bengal
Panchayat Election peacefully. There are about 330 blocks in West Bengal but the
State Government has decided to release a total of 191 officials (20 from IAS Cadre
and 171 from the West Bengal Civil Service) to function as observers during the
Panchayat polls against a demand of 425 officials placed by the State Election
Commission.
(14) We have also heard Mr. Shakti Nath Mukherjee, learned Senior Advocate
Appearing for the State Election Commission. He has placed before us a note
pertaining to the general scale of deployment in connection with Panchayat General
Election, 2018. We will revert back to the same later in this judgment.
(15) We have given out anxious consideration to the rival contentions of the parties.
(16) The petitioner has not pressed and has given up prayer (a) (i). He has also not
pressed prayer (c).
(17) In so far as prayer (a) (iii) is concerned, we are of the opinion that Art. 243-O
of the Constitution of India read with Secs. 79 and 93 of the West Bengal Panchayat
Elections Act, 2003 stand in the way of allowing such prayer. Secs. 79 and 93 (1) of
the 2003 Act read as follows:-
"79. Disputes as to elections._(1) If any dispute arises as to
the validity of an election under this Act, any person
entitled to vote at such election may, within thirty days
after the date of declaration of the results of such election,
file a petition, calling in question such election on one or
more of the grounds specified in sub-section (1) of Section
93 and Section 94_
(a) before the Civil Judge having jurisdiction
where such election is in respect of a Gram
Panchayat or a Panchayat Samiti,
(b) before the District Judge of the district,
where such election is in respect of a Zilla
Parishad or the Siliguri Mahakuma
Parishad.
(2) When filing a petition under sub-section (1), the
petitioner shall deposit in court, as security for the costs
likely to be incurred,_
(a) five hundred rupees, where the petition is
filed before the Civil Judge,
(b) one thousand rupees, where the petition is
filed before the District Judge.
(3)Every petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition
and every such copy shall be attested by the petitioner
under his own signature to be a true copy of the petition.
(4) The District Judge may transfer any petition filed
before him under sub-section (1) to any judicial officer
subordinate to him not below the rank of a Subordinate
Judge.
(5) In dealing with a petition under sub-section (1), the
Civil Judge, the District Judge or the Judicial Officer to
whom the petition is transferred under sub-section (4)
(hereinafter referred to as the Judge) may hold such
enquiry as he deems necessary.
(6) The Judges shall have all the powers of a civil court
for the purpose of receiving evidence, administering oath,
enforcing the attendance of witnesses and compelling the
discovery and production of documents.
(7) The decision of the Judge shall be final and shall not
be called in question in any Court.
93. Grounds for declaring election to be void._(1) Subject
to the provisions of sub-section (2) if the Court is of
opinion_
(a) that on the date of his election a returned
candidate was not qualified, or was
disqualified, to be chosen to fill the seat under
this Act;
(b) That any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected-
(i) by the improper acceptance of any
nomination, or
(ii) by any corrupt practice committed in the
interest of the returned candidate by an agent
other than all his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the provisions
of this Act, or of any rules made under this
Act, the Court shall declare the election of the
returned candidate to be void."
(18) In N.P. Ponnuswami (supra), at paragraphs 17 and 18 of the reported
judgment a six judges bench of the Apex Court observed as follows:-
"17. It may be pointed out that Article 329 (b) must be read
as complimentary to clause (a) of that article. Clause (a)
bars the jurisdiction of the courts with regard to such law
as may be made under Articles 327 and 328 relating to the
delimitation constituencies or the allotment of seats to such
constituencies. It was conceded before us that Article 329
(b) ousts the jurisdiction of the courts with regard to
matters arising between the commencement of the polling
and the final selection. The question which has to be asked
is what conceivable reason the legislature could have had
to leave only matters connected with nominations subject to
the jurisdiction of the High Court under Article 226 of the
Constitution. If part XV of the Constitution is a code by
itself, i.e., it creates rights and provides for their
enforcement by a Special Tribunal to the exclusion of all
courts including the High Court, there can be no reason for
assuming that the Constitution left one small part of the
lection process to be made the subject matter of contest
before the High Courts and thereby upset the time-schedule
of the elections. The more reasonable view seems to be
that Article 329 covers all 'electoral matters'.
18. The conclusions which I have arrived at may be
summed up briefly as follows:
'(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it has
always been recognized to be a matter of first importance
that elections should be concluded as early as possible
according to time schedule and all controversial matters
and all disputes arising out of elections should be
postposed till after the elections are over, so that the
election proceedings may be unduly retarded or protracted.
(2) In conformity with this principle, the scheme the
election law in this country as well as in England is that no
significance should be attached to anything which does not
affect the 'election'; and if any irregularities are committed
while it is in progress and they belong to the category or
class which, under the law by which elections are
governed, would have the effect of vitiating the 'election'
and enable the person affected to call it in question, they
should be brought up before a Special Tribunal by means
of an election petition and not be made the subject of a
dispute before any court while the election is in progress."
(19) In Election Commission of India-vs.-Shivaji & Ors (supra), the Apex Court
held in unequivocal terms that in view of the non-obstante clause contained in Art.
329 of the Constitution (which is in pari materia with Art. 243-O) the power of the
High Court to entertain a petition questioning an election on whatever grounds under
Art. 226 of the Constitution is taken away. Even if there is any ground relating to the
non-compliance with the provisions of the concerned statute or the Constitution on
which the validity of an election process could be questioned, the person interested in
questioning the elections has to wait till the election is over and institute a petition in
accordance with the provisions of the applicable statute. The Apex Court further
observed that it is not the concern of the High Court under Art. 226 of the
Constitution of India to rectify any error committed in the process of election at any
stage prior to the declaration of the result of the election notwithstanding the fact that
the error in question related to a mandatory provision of the statute relating to the
conduct of the election. If there was any such error committed in the course of the
election process, the Election Commission had the authority to set it right by virtue
of the power vested in it under Art. 324 of the Constitution and to see that the
election process was completed in a fair manner.
(20) It will be seen from the writ petition that all the prayers except prayer (a) (ii)
are for rectification of alleged irregularities committed in the election process. The
appropriate remedy for an aggrieved party is to approach the Election Commission
with his grievance. If the Election Commission does not redress such grievance, the
aggrieved party shall have to wait till the conclusion of the election and then
challenge the election of the successful candidate by way of an election petition as
provided under Art. 243-O of the Constitution and Secs. 79 and 93(1) of the West
Bengal Panchayat Elections Act, 2003.
(21) In so far as the point of maintainability of the present writ petition as a PIL is
concerned, we are unable to agree with Ld. Adv. General. The definition of PIL in
Rule 56 of the Writ Rules framed by this Court is an inclusive definition and not an
exhaustive one. Further, even that definition envisages that in a fit case even if the
petitioner has some private interest in the litigation, the Court may treat the writ
application as a PIL. There may well be overlapping of private interest and public
interest and both may co-exist. For example, a few months ago, when there was an
outbreak of Dengue in the State of West Bengal, several PILs were filed in our Court
for a direction on the state administration to adopt sufficient measures to control the
situation. The petitioners in such applications surely had some private interest in the
sense that they were also individually affected by the situation. However, there was
also overwhelming public interest involved and nobody questioned the
maintainability of such PILs.
(22) The right to express one's franchise freely is a valuable constitutional right.
The present writ petition as framed, is for protection of the said valuable right of the
citizens. The petitioner may have some private interest in the matter but no doubt a
larger public interest is also involved. A free and fair election where a member of the
electorate will be able to cast his vote in favour of his chosen candidate without any
obstruction or threat, is surely in larger public interest. It is the platform on which
the citadel of democracy rests. Hence, we are of the opinion that the present writ
application is maintainable as a PIL.
(23) We are unable to agree with Ld. Adv. General's submission that the writ
petition has become infructuous. Although some of the prayers may have become
infructuous, prayer (a)(ii) still survives. It cannot be said that the writ petition has
become infructuous as a whole.
(24) As regards prayer (a)(ii) we had called for reports from the Election
Commission as well as the State respondents regarding the security arrangements
made for peaceful holding of the Panchayat Elections. Such reports have been filed.
It appears from the said reports that polling is going to be held in 34962 premises. In
all, there will be 47415 polling stations i.e. booths. Each booth will be covered by
one armed police and one civic volunteer with lathi for queue maintenance. RT
Mobiles will be plying in polling areas with component of one officer (armed) along
with one armed component and one civic volunteer. They shall rush to the polling
station if and when required by the presiding officer of a booth. Quick Response
Teams will be plying in polling areas with component of one armed officer along
with two armed components and one civic volunteer who will rush to the spot if and
when required to tackle any untoward situation. Heavy Radio Flying Squad will be
plying in police station areas with one armed Inspector of police and half section of
armed components to tackle any untoward situation where larger contingent of force
is required. NAKA points will be introduced at the polling areas to check vehicles,
infiltration of trouble mongers etc. Each NAKA team will be manned by one armed
officer with three components of civic volunteers. For general police works at every
police station there will be two armed officers along with three armed components
and three components of civic volunteers. They will run the day to day functioning
of the police station. Striking Force consisting of two armed officers along with four
armed components, 2 gas and 12 lathi components including civic volunteers will be
deployed at every polling police station to act in case of requirement. Striking Force
consisting of one armed Inspector two armed officers, along four armed, two gas and
20 lathi components including civic volunteers will be deployed at every sub-
division headquarters. One armed officer along with two armed and 16 lathi
components including civic volunteers will be posted at each distribution center,
receiving center. Two armed officers along with eight armed components will be
posted at each of the Strong Rooms. The State has also requested for about 25 Coys
of force from other States namely Orissa, Telengana, Andhra Pradesh and Sikkim to
which they have agreed on principle.
(25) Learned Advocate General submitted that 71,5000 armed police personnel will
be deployed apart from civic volunteers who will be equipped with lathi. Out of the
71,500 armed police personnel, 500 will be Inspectors, 10,000 will be sub-Inspectors
and assistant sub-Inspectors and 61,000 will be Constables, Home Guards and
members of the National Volunteer Force. There will be about 80,000 civic
volunteers with lathi.
(26) The Court is not in a position to assess as to whether or not the above
arrangement is sufficient for ensuring a peaceful election and for tackling any
untoward incident. We categorically asked Mr. Mukherjee, learned Sr. Counsel,
representing the Election Commission as to whether the aforesaid arrangement is
sufficient and his client is happy with the same. Mr. Mukherjee answered in the
affirmative. In the report filed on behalf of the State Election Commission, it is
stated, inter alia, that the State Government has furnished security plan for Panchayat
General Elections, 2018 which is found satisfactory (emphasis is ours).
(27) A Division Bench of this Court dealt with a similar PIL in 2013 just prior to
the Municipality Election. The petitioner had prayed for a direction on the state
respondents to seek central para-military force to maintain the law and order situation
during the elections along with State Government police force. It was submitted that
free and fair election would not be possible in the absence of central para-military
force. After hearing the parties, the Division Bench held as follows:-
"................. We find that in the matter of holding election,
law and order situation has to be considered by the State
Election Commission and there are various factors for
request of the Central Para-Military Force, such as, law
and order situation and paucity of State Force etc. Such a
matter has to be considered by the State Election
Commission and the State Government and in case of any
dispute between them, the State Election Commission had
approached this Court earlier. In judicial review, the
Court cannot decide whether Central Para-Military Forces
are necessary in any of the election. These are the
decisions to be taken by the constitutional bodies like the
State Election Commission, the State Government etc.
Ordinarily, it is not for the Court to interfere with such
matters. It is the duty of the Election Commission to ensure
that free and fair election is held and for that, necessary
step to be taken by them."
(28) We completely agree with the aforesaid observations of the Division Bench. It
is not competent for the court to decide as to what degree of police force is required
for conducting a free, fair and peaceful election. Since the State Election
Commission is happy with the arrangement made by the State administration, we
deem it proper not to pass any further direction for the time being. However, we
hope and trust that in case the State Election Commission is of the considered
opinion that further force is required in view of any changed circumstances, it will
take necessary steps for mobilization of such additional force and the State
Government shall extend all help and cooperation in that regard. A free and fair
election is a sine qua non for a democracy to function properly and we expect that
that the State Election Commission and the State Administration shall leave no stone
unturned to ensure a free, fair and peaceful election.
(29) WP No. 4613 (W) of 2018 is accordingly disposed of.
Re: WP 4691 (W) of 2018:-
(30) The petitioner no. 1 in this writ application claims to be an association of
employees who are working under the Government of West Bengal. The petitioner
nos. 2, 3 and 4 claim to be working in various departments/directorates under the
Government of West Bengal. The main prayer of the petitioners is for a direction on
the respondents and in particular the State Election Commission to ensure safety and
security of the polling personnel by deploying Central Para-Military forces at polling
booths and as escorts.
(31) Technical objections have been raised by the respondents to the
maintainability of this writ application. However, we need not go into the same.
From the report filed by the State Election Commission we find that the security plan
furnished by the State Government covers the aspect of protection of the polling
personnel. Armed forces will accompany polling personnel from the distribution
centers to the polling stations, stay with them at the polling station and accompany
them from police station to the receiving center. Comprehensive order has also been
made for ex gratia compensation to the polling personnel in case of permanent
disability or death. An amount of Rs. 10 lacs as minimum amount is to be paid to the
next of kin of an official in the unfortunate event of his death on election duty. If
the death is caused due to violent act of extremist or un-social elements, the amount
of Rs. 20 lacs is to be paid. In the case of permanent disability, like loss of limb, eye
sight, etc. a minimum ex-gratia of Rs. 5 lacs would be given to the official concerned
which would be doubled in case of such mishaps being caused by extremist or un-
social elements.
(32) In view of the aforesaid, we are of the opinion that the grievance of the
petitioners stand redressed.
(33) WP 4691 (W) of 2018 is accordingly disposed of.
Re: 4701 (W) of 2018:-
(34) The main prayers in this writ petition are as follows:-
"(a) a writ in the nature of Mandamus commanding the
respondents authorities and their men and agents and
subordinates to conduct smooth and fair election.
(aii) A writ in the mandamus directing the Central
Government to provide Central force from the opening day
of starting of new process till one week after declaration of
result. "
(35) The aforesaid issues have been covered in our judgment delivered in WP 4613
(W) of 2018. Hence, no further order need to be passed on this writ petition. The
judgment in WP 4613 (W) of 2018 shall be operative in this judgment also.
Accordingly, WP No. 4701 (W) of 2018 is accordingly disposed of.
(36) In view of the order passed by us on 27 April, 2018 on the petitioner's
application for amendment of the writ petition being CAN No. 2314 of 2018, the said
application is deemed to be disposed of.
Re: WP 5415(W) of 2018:-
(37) The main prayers in this writ petition are for a direction on the
authorities to deploy Central Forces for conducting the ensuing Panchayat
Election and for a direction on the respondents to provide adequate
compensation to the members of the bereaved families who are victims of
political clashes during the Panchayat Election 2018. Both these issues have
been covered by us while dealing with the other writ petitions above and in
particular WP 4613(W) of 2018. Accordingly, the judgment and order in WP
4613(W) of 2018 will be operative in this judgment also. WP No. 5415 (W)
of 2018 is accordingly disposed of.
Re: CAN 2550 of 2018, CAN 2522 of 2018 and 2318 of 2018;
(38) These are applications taken out by various parties for being added as party
respondents in WP No. 4613(W) of 2018. The applicants contend that they have the
similar grievance and hence, they should be impleaded as parties and should be heard
before the writ petition is disposed of.
(39) We are of the considered view that the applicants are not necessary parties to
the writ petition. Their presence is not necessary for complete and effectual
adjudication of the issues involved in the writ petition. If they have any grievance,
they would be at liberty to file independent writ petitions if they are entitled to do so
in law.
(40) CAN 2550 of 2018, CAN 2522 of 2018 and 2318 of 2018 are accordingly
disposed of.
(Arijit Banerjee, J.)
Jyotirmay Bhattacharya, C.J.
I have perused the judgment delivered by my brother Justice Arijit Banerjee wherein His Lordship elaborately and extensively dealt with the maintainability of the writ petition with reference to some of the prayers made by the petitioners in his public interest litigation and I fully agree with His Lordship's views expressed therein with regard to the maintainability of this writ petition with reference to the petitioner's prayer contained in prayer a(i) and prayer a(iii). Of course, Mr. Adhir Ranjan Chowdhury, writ petitioner, while arguing the case in person candidly submitted that he would abandon the relief which he claimed in prayer a(i) as it is not his intention to frustrate election. He, thus, abandoned the relief which he claimed in the said prayer. Be that as it may the relief which he claimed in the said prayer has now become redundant as the notifications which were impugned in this writ petition were subsequently cancelled by the State Election Commissioner during the pendency of the writ petition.
The relief which the writ petitioner claimed in prayer a(iii) was founded on the basis of causes of action emanating from those impugned notifications which were subsequently cancelled by the State Election Commission. In view of the change in the causes of action following cancellation of those notifications by the State Election Commission, the relief which the writ petitioner has claimed in his prayer a(iii) now has become redundant. As such I agree with the findings of my brother Justice Arijit Banerjee that the reliefs claimed by the writ petitioner in prayer a(i) and prayer a(iii) cannot be entertained by this Court.
Let me add few sentences with regard to adequacy of the security arrangements made by the State Government during the polling period. Maintenance of law and order is within the State subject. The State Government is the appropriate authority to take decision as to how the law and order problem of the State will be managed. High Court has no independent mechanism for assessing the law and order problem of the State.
Here is the case where we find that a report has been submitted by the high responsible officer of the State Government regarding deployment of armed and unarmed police personnel or civic police personnel at the polling centers within a State. It is reported that security arrangements have also been made for safety and security of polling officers and polling personnel during their journey from distribution centers to the polling booths and for their safe return from the polling booths to the place of counting after polling will be over. It is also reported that security arrangement has also been made at the place of counting of ballots. The State Election Commissioner who is vested with the exclusive authority of holding free and fair election in the State, expressed his satisfaction about the security arrangements made by the State Government during poll day. Since the State Election Commissioner has expressed his satisfaction about the security arrangements made by the State Government, this Court having no independent machinery to assess the adequacy of such security arrangements, declines to assess the adequacy of such security arrangements by reposing faith and trust in the high constitutional functionary of the State who recorded his satisfaction about the adequacy and sufficiency of the security arrangement made by the State Government. We sincerely believe that the decision which was taken by the State Government and was approved by the State Election Commission is free, fair and unbiased.
If, however, it is found subsequently that the security arrangements which were made by the State Government and were approved by the State Election Commissioner are inadequate and insufficient and due to inadequacy of such security arrangement any poll violence casualty occurs and/or property belonging to the citizen is destroyed and the number of poll violence casualties is more than the poll violence casualties occurred during the last Panchayat Election which was conducted with the deployment of both State police and Central Paramilitary force and the extent of loss of property is more than the extent of loss of property which occurred during the last Panchayat Election, then not only the State Government will be liable to compensate such loss of life and property of the affected persons but also the high State officials who submitted such report and the State Election Commissioner who approved such report with regard to adequacy of such security arrangement will be personally liable to compensate such loss, in case it is found that their decision was not fair and unbiased and submission of their such report before the Court and/or approval thereof by the State Election Commissioner, was communicated to the Court only to mislead the Court about the adequacy of such security arrangement.
Under such circumstances such compensation to be paid to the affected person and/or next of their kin, will be recovered and/or realized not only from the salary of the responsible officer of the State who submitted the misleading report before this Court and the State Election Commissioner who approved such report consciously knowing the consequence thereof but also from their retrial benefits and from their personal properties by way attachment and sale thereof. If the entire compensation money payable in this regard cannot be recovered in the manner as aforesaid, the State Government will be liable to pay the remaining part of such compensation to the affected persons and/or their next of kins. It may be mentioned herein that the Government has already declared different compensatory reliefs for different types of poll violence casualties and/or injuries that may be suffered by the polling personnel during the poll day and /or in course of their engagement in polling assignment. Compensation for loss of life and/or personal injury will be paid to the affected person and his/ her heir and successor at the same rate at which it was declared by the Government for the affected personnel engaged for conducting the poll during the Panchayat Election. Compensation of loss of property will be paid at par with the actual loss.
Needless to mention here that in case it is found that loss of life and property during the election day is less than the loss of life and property during the last Panchayat election, then the State Government alone will be liable to compensate such loss of life and/or property in the same manner as indicated above.
Before concluding we would like to express our hope and expectation that whenever the election will be held, steps will be taken so that election will be fair, peaceful and transparent in all respects and both the State Authorities and the Election Commission will do their best to ensure the same.
Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Jyotirmay Bhattcharya, CJ.) I Agree.
(Arijit Banerjee, J.) Later:-
An application being CAN NO. 2713 of 2018 filed in Court by Party for Democratic Socialism (PDS) and one Samir Putatunda on 10.05.2018 be treated as on day's list. The prayer is for adjournment of WP No. 4613(W) of 2018 sine die.
We have already rejected an application filed by the same parties for being added as party respondents to WP No. 4613(W) of 2018.
In any event, we find no merit in the present application. There is no valid reason why hearing of WP No. 4613(W) of 2018 should be adjourned sine die or at all.
Accordingly, the application being CAN No. 2713 of 2018 is dismissed.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.)