State Election Commissioner Independent Constitutional Body, Plea For Removal Not Maintainable: Calcutta High Court

The Calcutta High Court has dismissed pleas filed against the West Bengal State Election Commission, for inter alia re-conduct of elections in areas where seats were uncontested, extension of dates for filing nominations and removal of the State Election Commissioner, among other ancillary reliefs.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that prayer for the removal of the Election Commissioner would not be maintainable since, it is an independent constitutional body which has been vested with the powers of “superintendence, directions and control” of the election process in terms of Article 243K of the Constitution of India read with provisions of the West Bengal State Election Commission Act, 1994. The Bench opined:

“In terms of Article 243K (2), the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In the light of the said constitutional provisions, the prayer made by the writ petitioners to remove the State Election Commissioner is not maintainable and the same is rejected.”

Plea to declare rural polls as void

The bench said in the case of Dipankar Rit v State of West Bengal it has already held that courts cannot interfere with election process and it is the domain of SEC. The aforesaid decision was upheld by the Supreme Court in special leave petitions filed by the SEC and State of WB, thus attaining finality. It thus observed,

“The above decision having attained finality as a special leave petition filed by the State Election Commission as well as State of West Bengal were dismissed by the Hon’ble Supreme Court, the present writ petition is hit by the principles of res judicata. The Hon’ble Supreme Court in the decision reported in State of Karnataka and Another Versus All India Manufacturers Organisation considered the question as to whether the doctrine of res judicata, as a matter of principle, can be applied to the public interest litigations. It was held that in view of the Explanation (vi) it could not be disputed that the Section 11 of the Code of Civil Procedure applies to the public interest litigation as long as it is shown that the previous litigation was in public interest and not by way of private grievance. Further it was held in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large and as long as litigation is bona fide, the judgment in previous public interest litigation would be the judgment in rem. It arises public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue which had been raised/and should have been raised at an earlier occasion by way of public interest litigation. In the light of the above reasons, the reliefs sought for in the writ petitions cannot be granted. Accordingly, the writ petitions are dismissed.”

Re-conduct of Elections & Extension of Time for Filing Nominations

The next prayer was for re-conduct of elections in specific areas, on the allegations that candidates were threatened to withdraw nominations, which led to seats being won uncontested and that nominations from ruling party candidates were accepted in an improper manner, leading to thousands of nominations being filed in the last two days of the process.

In holding that the Court could not interfere into such matters under its writ jurisdiction, the Bench opined:

“In N.P. Ponnuswami and ors v Returning Officer (1952), it has been held that the interference with the elections under the writ jurisdiction will lead to serious consequences and if the election is unduly protracted or obstructed and any matter which has the effect of vitiating the election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at any intermediate stage before any court. In West Bengal State Election Commission and Ors v Communist Party of India (2018), it was held that any dispute regarding validity of election has to be initiated by filing election petition, controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. If any irregularities are committed while the election is in progress and they belong to the category governed by the election law when the same must be questioned by filing election petition before the relevant tribunal and the same should not be made the subject of dispute before any court while the election is in progress.”

Further Court noted that those candidates who had individual grievance had approached the court by way of filing writ petitions and in those writ petitions they sought for direction for setting aside the orders rejecting the nominations, prayer to accept the nominations, prayer to defer the election and such other reliefs and the writ court considering the factual and legal position had passed orders in those writ petitions. Therefore also, the prayer sought for could not be acceded to.

Accordingly, the petitions were dismissed without any costs.

Coram: Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya

Case: Ujjwal Trivedi v The State Of West Bengal and Ors with Save Democracy And Ors v The State Of West Bengal And Ors

Citation: 2023 LiveLaw (Cal) 185

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