Why Candidates Apprehending Violence Not Approaching Election Commission? Calcutta High Court Asks In Plea Seeking Fresh Election Process

The Calcutta High Court on Tuesday asked why the candidates apprehending violence amidst the 2023 Panchayat Elections have been hesitant to file election petitions before the State Election Commission."If violence has happened against a candidate, what deters them from approaching Election Commission complaining of the same? EC has shown data that withdrawal percentage is 9.1% which is far less than 2018," a division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta orally remarked.The bench was hearing two PILs filed by an Advocate and an organization namely Save Democracy, seeking re-conduct of elections (where candidates have been declared as 'elected uncontested') and extension of time for filing nominations. They alleged that forceful withdrawal of nominations, violence, and tampering, as well as “spurious nominations” filed by the ruling party’s candidates have “vitiated the election process” and that the State Election Commission and law and order administration of the state have taken no action in order to prevent or address the same.Over the past few days, the Bench has heard a spate of such petitions alleging interference in election process however, SEC claims it has not received any such complaints. “That’s why the report by commission says no candidate whose nomination is affected has come with election petition. Same thing happened in 2018, none came with petition," the Bench remarked.It also expressed disinclination to interfere with the nomination process, which got over on June 15th. "…in our earlier judgement we have taken a decision that to what extent EC can extend nominations. That order has become final because the SC has affirmed it.”Senior Advocate Bikash Ranjan Bhattacharya appearing for the petitioners contended that thousands of ruling-party candidates had filed their nominations for the panchayat elections only on the last day for filing, and that such numbers were “unbelievably large.” The petitioners even claimed that a certain candidate from Minakha constituency in South 24 Parganas, had managed to file his nomination while being in Saudi Arabia for a Hajj pilgrimage.On the issue of violence, Bhattacharya argued that in an instance of violence in the Tajpur constituency, even the police personnel were allegedly forcing an aspiring candidate to withdraw her nomination, and that when she refused, the police allegedly booked her and her associates under false criminal charges. It was prayed that wherever there have been recorded instances of violence leading to forceful withdrawal of nominations, the elections must be held afresh. It was argued by the petitioners that under Section 46(2) of the WB Panchayat Election Act (“Act”), the Election Commission has inherent power to defer the election process, and that it cannot at the present stage hide behind the statute and claim that its hands were tied. The counsel argued:“They are taking shelter of the statute, but the statute cannot predict everything, it only empowers [the SEC] to take steps in order to ensure that filing of nominations are not prevented by violent means. That is the essence of the statute…the SEC has to take steps.”It was argued that the Election Commission, on account of such impropriety and violence must extend the dates of filing nomination by using its residuary powers under Section 46(2) of the Act, since even those who drafted the aforesaid Act would not have envisaged that such large-scale violence would take place at the stage of filing nominations. It was further contended that if the state legislation does not provide the requisite relief, then the SEC could also seek shelter in Article 324 of the Constitution of India which deals with the Election Commission."Election is the whole process, not just polling. Free and fair [elections] must cover the whole process, from date of notification to declaration of results. If at any time free and fair is vitiated then entire process is vitiated. Residuary powers of SEC are wide enough to include all powers necessary for smooth conduct of election, which is its entire process, with all stages. If law is silent, then Article 324 of constitution can be resorted to for conduct of free elections…since it is a constitutional body, the SEC cannot hide behind statutes. The State legislation is merely for guidance, and contingencies that arose in this case could not be foreseen by the law makers. In such a case, the SEC can fill up the lacunae till there is a legislation enacted on the subject. Accordingly, the SEC had immense powers to ensure free and fair elections….they must exercise this power and not be mere onlookers...Democracy depends on free and fair poll, that is why this power should be exercised,” it was argued.On the other hand, the State Election Commission represented by Senior Advocate Jishnu Saha contended that after being “rebuked” by the Court, the Election Commission had remedied the situation to a large extent.It was claimed that, ...

Why Candidates Apprehending Violence Not Approaching Election Commission? Calcutta High Court Asks In Plea Seeking Fresh Election Process

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Why Candidates Apprehending Violence Not Approaching Election Commission? Calcutta High Court Asks In Plea Seeking Fresh Election Process

Srinjoy Das

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