WB Polls | Calcutta High Court Questions Need For ECI Order To Arrest 'Troublemakers' When Law Already Covers Offences, Reserves Verdict

The Calcutta High Court on Wednesday (April 22) orally asked the Election Commission of India the need for it to direct arrest of "trouble makers" ahead of West Bengal polls, when there are laws in place governing such offences along with statutory authorities who are duty bound to carry out the law. 

The court posed the query to the poll body while hearing a PIL alleging that the ECI has "secretly" prepared a list of so-called “trouble makers” to arrest political workers of the ruling TMC Party ahead of assembly elections.

After hearing all the parties, the court reserved its verdict. 

The petition, filed by advocate Md. Danish Farooqui, claims the alleged list predominantly contains workers, office-bearers and elected representatives associated with the ruling All India Trinamool Congress. It contends that any such arrests, without specific criminal cases or lawful grounds, would amount to a direct assault on personal liberty and the democratic process.

Notably, the elections in the State are slated to be held tomorrow i.e. April 23 and on April 29. 

During the hearing, senior advocate Dama Sheshadri Naidu appearing for ECI submitted before a division bench led by the Chief Justice Sujoy Paul that there were "emergent circumstances" which required poll body to take steps, which is permissible under Article 162 of the Constitution. He also submitted that the information was sensitive and secretive and its disclosure could cause calamitous circumstances.

At this stage the Chief Justice orally asked, "If there is an offence, they are described under the Acts, and there are statutory authorities who are under a duty to carry out the law. Those authorities have to power to ensure fair elections take place. Then what is the need for such an order?".

To this, Naidu said that the order was needed to inform all in the administration that these persons "cannot interfere" with any electoral process and to ensure the accountability of all those in power.

"Judicial officers were held at gunpoint and gheraoed. The Supreme Court had come down heavily on us. They said it was our duty to take all steps necessary," Naidu emphasized.

ECI has no power to order arrests

During the hearing, senior Advocate Kalyan Bandopadhyay appearing for the petitioner argued that the ECI has no right to make arrests and that this power only lies with the police officers.

He further said that a magistrate can direct arrest, but questioned if ECI can take away people's freedom.

"Can the ECI take away people's freedom? Can the ECI abdicate the duties of a magistrate (directing arrest)? Nowhere in the country this is happening…only in West Bengal," Bandhopadhyay emphasized.

He further argued that preventive detention has clear laws. He said that while patrolling can be ordered however questioned if arresting people was the right way. He further said that ECI cannot use the power of prevention detention and its use by the poll body amounts to coercion.

"They are not above the Constitution...ECI is threatening everyone...these sweeping directions are a direct affront to the personal liberties if individual citizen and can only be achieved under the law. This is extraneous to the election process and is a colourable exercise of power. The power of preventive detention is a draconian power. And can be exercised under specific statutes that are under the courts scrutiny. The ECI cannot use these powers. This is a form of duress and coercion. Police officers are not to act under the ECIs extraneous directives," he said. 

He further said that members of one political party are being picked up and are being branded as "Trouble makers". This, Bandopadhyay said, creates a "profound chilling effect" on the democratic process.

He said that this will create an impact on other workers of the party who want to participate in legitimate democratic activities, and such action further compromises the integrity of the election process.

Bandhopadhyay said that "time was short" and the ECI was using this to ensure that petitioners cannot approach the court. 

The senior advocate argued that ECI is misusing and abusing its power, therefore it's "entire action is a fraud on power and vitiates all actions". He further said that there was no difficulty if anyone who has committed a cognisable offence is picked up. 

Questioning the deployment of CISF and CRPF for elections in the State, Bandhopadhyay said:

"By issuing a blanket order without any basis, they are taking away the liberty of persons. ECI has its own circle. Why have you brought all this CISF and CRPF? You are taking away party's workers and members. You won't let them vote. What are you trying to do? Does democracy still exist in this country?". 

No term as Troublemaker used in any law

Meanwhile appearing for the West Bengal government, Advocate General Kishore Datta said that he was supporting the PIL petitioner, adding that irrespective of Article 324 (Superintendence, direction and control of elections to be vested in EC) of the Constitution of India, the general law and order in and around the poll booths are under the purview of the State.

"The subject is preventive action against voter intimidation. 'Troublemaker' is not a term that is used in any penal statute," the AG emphasized. 

He said that "intimidation of voters" is an electoral offence under the Representation of the Peoples (RP) Act.

Further opposing EC's alleged preventive detention orders, he submitted that preventive action is present in the BNSS not under the RP Act. Since there was no term called “troublemaker”, the ECI cannot coin a term that is not there in any statute, the AG emphasized. 

Pointing to Article 22(3) of the Constitution, the AG argued that for preventive deletion there must be a law; however the ECI in its notification had not referred to any law to detain these persons. Such action, without mentioning any law, had no justification the AG argued. 

He further submitted that preventive detention law can be framed by Parliament only for "security or defence matters or when India's integrity is threatened"; however that was not the case herein. 

"Now see List 3 Entry 3 and when preventive detention law can be made..this is a bit wider…to maintain public order or security of state. The only factor can creep in here is maintenance of public order. There is no allegation that they are affecting order. Then again there is no law," he added. 

He further submitted that under Section 168 BNSS police officers can also take action to prevent a cognisable offence from occurring or prevent damage to public property.

AG thus said that preventive detention was permitted only when there was a design to commit a cognisable offence; however in the present situation there was no mention of political workers of TMC being accused of cognisable offences.

He said that the offences alleged were non-cognizable; thus the police cannot make arrests without a magistrate's warrant and it cannot make arrest on the orders of the ECI. 

At this stage the Chief Justice asked, "if someone breaches law, they can be taken into custody?" 

To this the AG said that criminal law cannot be set into force in a manner contrary to law and the ECI must justify the legal basis of their actions. 

He said that these general directions by the ECI cannot be enforced as it must be case and offence specific. He further said that if someone seeks to commit an offence, the police can take preventive action.

While concluding, the AG said that ECI cannot make such remarks that "someone is a criminal or needs to be detained". 

Details are secretive, petitioner should own up source

Meanwhile senior advocate Dama Sheshadri Naidu appearing for ECI said that the poll body had been tasked with conducting elections peacefully; so it was taking all such steps in accordance with law.

"It's not that this is only one State where this happening. Give us 48 hours, we will show that [it] is happening everywhere. We have to be cautious and ensure that democracy is saved," Naidu said. 

As the court asked Naidu if he wished to file a counter affidavit to the PIL, Naidu responded in the affirmative. He further said that the allegations made in the PIL were serious and the poll body wants to be careful in its response.

Naidu further pointed to details of security measures taken for elections conducted in Bihar last year. 

"Our practise had been consistent. No State has been singled out. I will give the details. I am stating that their nature of information is secretive and undisclosed," Naidu said. 

He said that the duties of the poll body are sensitive, and questioned as to how the petitioner had access to communication regarding a notice that is “secretive”.

Arguing that disclosure of such information may lead to "calamitous circumstances" Naidu said:

"They should own up to their sources and place them before your lordships.Tomorrow is the election, they wanted to unleash violence and put us on the defensive. This is the objective they wanted to achieve. That is why such innuendo". 

It was also argued that the ECI had kept information under wraps on various vulnerable booths to ensure the accountability of the police.

Naidu said that the election was scheduled for tomorrow and "under these circumstances they (petitioner) would like to have a gun to my (ECI) neck" which is not proper.

He thus sought time till April 27 to file a counter affidavit.

The senior advocate appearing for Director General of Police West Bengal submitted that police cannot take any steps till a cognisable offence is registered, but whatever steps are to be taken to prevent a crime the police will take them.

He said that ECI had clarified that police must take steps in accordance with law adding:

"If there is any cognisable offence, we will take steps and act under the directions of the ECI. We will not try to infringe liberties or fundamental rights and balance the situation".

Agreeing to this, Bandopadhyay said that he had no problem with submissions made by the DGP which were fair. But with respect to the ECI, the senior advocate questioned the poll body's basis to identify someone as a troublemaker, calling such action "stigmatic". 

Bandhopadhyay pressed for a stay of the 'troublemaker' list but said that if any offence is committed by anyone, then appropriate legal steps should be taken.

After hearing the parties, the court reserved its verdict.

Case Details: Md. Danish Farooqui v. Election Commission of India & Ors.