PIL Moved In Calcutta HC Challenging ECI's Decision To 'Prioritise' Bhowanipore Bye-Election

In this regard, the ECI has already issued the notification/memo to conduct the by-election in the 159-Bhabanipur Assembly Constituency on September 30, underscoring the exigency and special request received from the Chief Secretary, Government of West Bengal to hold the bye-election.

The PIL questions the request made by the Chief Secretary of the Government of West Bengal, to the Election Commission to hold the bye-elections in 159-Bhabanipur Assembly Constituency, 'in view of administrative exigencies and public interest and to avoid a vacuum in the State'.

Importantly, the Chief Secretary of the Government of West Bengal had, in his letter, mentioned the fact that CM Banerjee would be contesting the by-poll in Bhowanipore.

Against this backdrop, the PIL, which has been filed by one Sayan Banerjee, through Advocate Ankur Sharma avers that the priority to hold the bye-elections amidst Covid-19 pandemic is based on unreasonable, mala fide and undue influence caused by an unelected Chief Minister to interfere with the free and fair democratic process of elections.

Background

Referring to the letter of the Chief Secretary of the Government of West Bengal, the Election Commission, while issuing bye-poll notification had issued a statement, which is as follows:

"While the Commission has decided not to hold by-elections in other 31 Assembly constituencies across the country, considering the constitutional exigency and special request from the state of West Bengal, it has decided to hold the by-election in Bhowanipore."

Now referring to this notification and statement of the ECI, the plea has averred that the Chief Secretary of the State of West Bengal is very much enthusiastic to pursue the intention of a Chief Minister who is not a member of the legislature so as to save her from Constitutional consequences under 164(4) of the Constitution of India.

"The Petitioner's challenge to the decision of the classification of the priority of the constituencies on the ground of the exigency as determined on the basis of the letter by the Chief Secretary of the State of West Bengal, inter alia, communicating the intention of the unelected Chief Minister to contest from a particular Constituency in order to avoid the Constitutional consequences ought to have been faced by an unelected Chief Minister under Article 164(4) of the Constitution of India, the plea further adds.

Against this backdrop, the plea questions the classification as being mala fide, bad in law and avers that any decision arrived on the basis of such classification is bad in law and liable to be set aside.

Apart from this, the plea also states that the Chief Secretary, by writing the letter, acted beyond the service rules which state that: "No member of the service shall canvass or otherwise interfere with, or use his influence in connection with, or take part in, on election to any legislature or local authority...."

Therefore, the plea contends that the Chief Secretary of the State of West Bengal has created an extraordinary situation to favor the Chief Minister of the State to save her from the constitutional consequence under Article 164(4} of the Constitution of India, 1950.

"It is not the duty of the Election Commission of India to fulfil the vaccum anticipated by a mere Chief Secretary who is just a mere executive subordinate and it is expected that an executive subordinate like a Chief Secretary of a state cannot exercise his administrative powers in order to influence the Election Commission of India legally," the plea further states.

The prayers in the plea

• Direct the respondents to transmit all letters/memos/communication related and prior to the announcement of the by elections in all three vacant Assembly seats of West Bengal Legislative Assembly to the Court so that conscionable justice may be administered
• Direct Respondents to cancel/quash /rescind the memo dated 04.09.2021 issued by the Election Commission of India and all subsequent action/actions taken on the basis of the said decision in respect of 159 Bhabanipur and direct ECI to initiate delivery action against Assembly Constituency the Chief Secretary;
• Direct the respondents to transmit the entire records of the case to the Court so that conscionable justice may be done;
• An interim order of injunction in respect of the Memo dated 04/09/2021 issued by the Election Commission of India in respect of Bhabanipur Assembly Constituency.