Date of Judgement: June 20, 2023
Bench: Hon’ble Justice B.V. Nagarathna and Hon’ble Justice Manoj Misra
Special Leave Petition (Civil) No. 12294 of 2023
Facts of the Case:
- The West Bengal State Election Commission (WBSEC) announced that the Panchayat elections in the State were to be held on July 8, 2023. The last date for filing of the nominations was on June 15. The last date for withdrawal of the nominations was on June 20.
- During the process of filing of the nomination papers, many candidates of the Opposition Parties, reportedly, were obstructed violently by the local workers of the ruling party in the State Legislature, the Trinamool Congress.
- Seeing the level of violence and atrocities committed against the candidates of the various Opposition Parties and the worsening condition of the law-and-order situation in the State amidst police inaction, Suvendu Adhikari, a BJP MLA and the Leader of Opposition in the West Bengal State Legislative Assembly, filed a Public Interest Litigation (PIL)[1] in the Calcutta High Court seeking directions to deploy para-military forces in all politically sensitive zones of the State to ensure free and fair elections.
- A Division Bench consisting of Chief Justice T.S. Sivagananam and Justice Hiranmay Bhattacharyya of the Calcutta High Court took note of the matter and with a judgement dated on 13.06.2023 had ordered the State Election Commission to identify the politically sensitive regions in the State and deploy Central para-military forces within 24 Hours.
- The Commission submitted that it would require some days in order to assess and identify the politically sensitive zones from law-and-order point of view and deploy the para-military forces.
- Seeing the non-compliance with its previously dated order, a Division Bench of the Calcutta High Court consisting of Chief Justice T.S. Sivagananam and Justice Uday Kumar took note of the matter and stated that taking more time would not help in the “purity of the election process”, and in response to another PIL[2] filed by Suvendu Adhikari, on 15.06.2023 ordered the State Election Commission to deploy Central para-military forces in all the districts of the State within 48 Hours to maintain law-and-order and ensure free and fair election in the State. The Court also said that all costs for deployment of Central Forces shall be borne by the Central Government.[3]
- Both, the Government of West Bengal and the West Bengal State Election Commission challenged the aforementioned order of the Calcutta High Court in the Supreme Court of India[4].
Issues Raised
Based on the issues raised by both the parties, the following legal questions were formed:
- Was the High Court correct in issuing a blanket order for deployment of Central Forces in all the districts of the State?
- Was the time given to State Election Commission sufficient to conduct a preliminary to assess the sensitive regions of the State?
Contention
Arguments by the Appellants:
- Senior Advocate Siddharth Agarwal, appearing on behalf of the Government of West Bengal, submitted that the Division Bench of the Calcutta High Court went wrong in issuing a blanket order to deploy Central para-military forces in all the districts of the State, not even assessing the sensitivity of the region or the level of competency of the State Police to handle the situation. He also stated that though there was sufficient time before the date of election (8th July) the High Court directed for deployment within a short span of 48 Hours. He said that directions passed by the High Court were made in haste, even before the preliminary investigation by the Commission was over. He also mentioned that involving multiple levels of police officials would result in nothing but chaos and confusion. He also argued that there was a precedent of such incident occurring in the State where the CRPF personals open fired at crowd killing four persons during the State Legislative Assembly Elections in 2021.
- He also stated that there may arise a need of for additional police forces for the conduct of free and fair elections on 08.07.2023 and also for all the election related processes till the aforementioned date, however it is the discretion of the State Government whether to requisition additional police forces from the neighbouring States or the Central Government after consulting the State Election Commission. In this case, the impugned orders of the High Court had thus curtailed the discretionary powers of the State.
- Senior Advocate Meenakshi Arora, appearing for the West Bengal State Election Commission, submitted that it is for the State Election to assess the sensitivity of the poll booths. She stated that the PIL[5] in the High Court was filed on 9th June, just a day after the polls were notified, without waiting for the steps to be taken by the Commission.
- She also referred to a 2018 judgement[6] of the Hon’ble Supreme Court where it was held that the involved parties via suitable representations could also approach the Election Commission of India to attend their grievances. Thus, she submitted that the directions of the High Court to West Bengal State Election Commission was not required at all and was well beyond the jurisdiction of the learned Court.
- Senior Advocate Devadatt Kamat, also appearing for the West Bengal State Election Commission, stated that the High Court was also wrong in passing strictures against the SEC as if the Commission was not doing its designated duty. Thus, he prayed to expunge the unnecessary remarks made by the High Court from the final judgements.
Arguments by the Respondents:
- Senior Advocate Harish Salve, appearing on behalf of Suvendu Adhikari, submitted before the Court that the manner in which the West Bengal State Election Commission was acting was very much partisan in nature, and also it is quite evident from way the Commission had filed its Special Leave Petition that it was clearly favouring and supporting the Government of West Bengal.
- He also supported the order of the High Court (dated 15.06.2023) by submitting that it was not the first time that the High Court had issued such a direction. In earlier occasions as well, the High Court had issued similar directions to maintain free and fair elections in the State. It was also argued since the State Election Commission had failed to comply with the Court’s 13.06.2023 dated order, thus the consequent order was passed.
Rationale
The Division Bench consisting of Hon’ble Justice B.V. Nagarathna and Hon’ble Justice Manoj Misra of the Supreme Court of India, considered this as a rare and unique case where it was significant to note that members belonging to different political parties who are ideologically are in different sides of the political spectrum, voiced a common concern and sought very similar reliefs when they filed their respective Writ Petitions at the High Court.
The Court dismissed the petitions[7] of the Government of West Bengal and the West Bengal State Election Commission, challenging the orders of Calcutta High Court[8] (dated 13.06.2023 and 15.06.2023.)
The Court referred to its previous judgements in T. N. Seshan v. Union of India[9] to stress upon the importance of an independent body “insulated from political and/or executive interference” to conduct free and fair elections in the country.
The Court also relied upon its former judgement in Indira Nehru Gandhi v. Raj Narain[10] to signify that in a democratic country like India it is very much important to conduct free and fair elections and “not rigged and manipulated” in order to ascertain the popular will of the rightful citizens of the country and to keep maintaining the faith of the common people in the democratic institutions intact.
While dismissing the petition, the Court took note that the West Bengal State Election Commission had failed to implement the previous order of the Calcutta High Court with due diligence, and upheld the order of the High Court as it had no other option, keeping in mind the past incidents of electoral violences, other than directing the State Election Commission to deploy Central para-military forces in all the districts of West Bengal in order to maintain law and order in the State and to ensure free and fair elections at all the levels of the Panchayati Raj. The Apex Court also noted that the neither the Government of West Bengal nor the State Election Commission should have any problem with the deployment of the Central Forces as the entire cost of deploying and managing were to be borne by the Central Government.
Defects of the Law
The question arose in the Supreme Court whether the High Court was correct in its approach of issuing such directions when remedy was available to the respondents where they could also make proper representation before suitable forum first as established by the Apex Court in its previous judgement?[11]
The Supreme Court stated as the Panchayat elections in the State was just around the corner, and keeping mind the paucity of time, the directions issued by the High Court was apt in accordance with the circumstances.
Inference
As noted by the Division Bench of the Supreme Court, this case indeed a rare one and special in its own sense. Members belonging from different political parties, bearing different ideologies came together under a common cause to protect the Fundamental Rights of the common people in order to ensure that the election for all the three-tiers of the Panchayati Raj institutions take place in a democratic manner.
Even before India gained her independence, the Province of Bengal (as known during the British Raj) played an integral role in the Indian Independence Movement. After 15th August 1947, the State of West Bengal (the part India got after the Partition[12] of the Province of Bengal) holds a special place in the history of post-Independence India and contributing greatly to its forever changing political landscape.
After India gained her independence in 1947, the State of West Bengal has always been a hotbed for various political movements in the country. Violent clashes between the members of opposite political parties are not uncommon. Incidents of sporadic violence erupting in politically sensitive parts of is reported in the media every now and then. The National Human Rights Commission (NHRC) after the State Legislative Assembly elections in 2021 stated in its survey that the post-poll violence caused immense destruction of life and property in the State.
Knowing very well how history repeats itself in West Bengal during and after every major election, the Calcutta High Court did not shy away from away from the truth and passed appropriate measures in order to secure justice for each and individual of the State so that no one can face any form of difficulty or any feels intimidated while exercising their franchise. The Supreme Court of Indian also acknowledged that violence is not uncommon in politically sensitive areas of West Bengal during and after every major election. So, they upheld the decision of the High Court while dismissing the petition.
This judgement also acknowledged that the State High Courts can use its vast powers conferred to them under Article 226[13] in matters pertaining to elections and election laws where it becomes essential to protect the democratic spirit of the Constitution, the High Courts can issue appropriate directions as it may deem fit as per the circumstances allow to conduct free and fair elections.
AUTHOR:
Sayantan Debnath
St. Xavier’s University, Kolkata
[1] WPA (P) 287 of 2023
[2] WPA (P) 301 of 2023
[3] Suvendu Adhikari and Anr. v. State of West Bengal and Ors. 2023 LiveLaw (Cal) 162
[4] Special Leave Petition (Civil) No. 12294 of 2023
[5] WPA (P) 287 of 2023
[6] Bharatiya Janata Party, West Bengal v. State of West Bengal (2018) 5 SCC 365
[7] Special Leave Petition (Civil) No. 12294 of 2023
[8] WPA (P) 287 of 2023 and WPA (P) 301 of 2023 in Suvendu Adhikari and Anr. v. State of West Bengal and Ors. 2023 LiveLaw (Cal) 162
[9]T.N. Seshan v. Union of India (1995) 4 SCC 611
[10] Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
[11] Bharatiya Janata Party, West Bengal v. State of West Bengal (2018) 5 SCC 365
[12]Indian Independence Act, 1947 of the British Parliament
[13] Article 226, The Constitution of India, 1950