The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar on Thursday stayed the order passed on Tuesday by a Division Bench of the Calcutta High Court directing the State Election Commission to accept the nomination papers submitted via email by 3 PM on April 23 for the Panchayat Elections scheduled to be held on May 14.
The Bench has passed the following directions Today;
(i) There shall be a stay of the impugned judgment and order dated 8.5.2018 passed by the Division Bench of the High Court;
(ii) The Panchayat election scheduled to be held on 14.5.2018, shall proceed as per law;
(iii) The petitioners i.e. the West Bengal State Election Commission and its functionaries shall see to it that the election which is scheduled for 14.5.2018 is held in absolute fairness, keeping in view the concept of purity of an election in a democracy;
(iv) The election process in respect of the constituencies shall be completed in all aspects and the results of the election can be notified as per law; and
(v) The petitioners shall not notify the results in respect of the constituencies where there has been no contest, without the leave of this Court.
The bench also restrained the State Election Commission from issuing, without the leave of the court, the results in respect of the constituencies where there has been no contest.
However, the bench permitted the May 14 elections to proceed as scheduled, the Commission being responsible to ensure fairness.
Senior Counsel Rakesh Dwivedi, appearing on behalf of the State Election Commission, drew the attention of the bench to order passed by Justices A. Mukherjee and B. Somadder- “The State Election Commission has been constituted under section 3 of the West Bengal State Election Commission Act, 1994 with Constitutional sanction. It therefore does not strictly come within the ambit ofsection 6(1)(a) of the Act of 2000 to be a body or agency owned or controlled by the appropriate Government. Similarly, the State Government is not called upon to make rules in terms of section 90of the Act of 2000 in respect of filing of nomination forms through email. It is for the State Election Commission - being a Constitutional body/authority - to provide for the same, as filing of nomination through e-mail invariably prevents large scale violence centering around the Panchayat elections and above all, bloodshed and loss of precious human life. Further, it eliminates hurling of accusations and counter-accusations and encourages peaceful and wider participation. Above all, it upholds the democratic principles which form a pivotal part in the Panchayat election process and is not to its derogation but on the contrary, furthers it. To that extent, the relevant provision of the Act of 2000 shall be deemed to be read into the applicable provision of the (West Bengal Panchayat Elections) Act of 2003 in respect of filing of nomination papers, purely by implication...”
“The order was passed without even an enquiry into the facts relating to the alleged prevention of the candidates nominated by the appellant [CPI (M)] from filing their nomination...”, pointed out Mr. Dwivedi.
Contending that the Supreme Court may not interfere with the High Court’s order under Article 136, Senior Counsel P. S. Patwalia cited the orders dated April 9 and April 11 of the apex court bench of Justices R. K. Agrawal and A. M. Sapre to the effect that the court shall not interfere with the Panchayat Poll process and preparations, directing the candidates of the West Bengal wing of BJP to approach the State Election Commission with their grievances and complaints against the ruling TMC , as well as refusing to hear their plea against the Commission’s decision to recall its order extending the deadline for filing of nominations for panchayat polls by a day from April 9, requiring the petitioner to approach the Calcutta High Court
In response to a query in this behalf by the bench, Mr. Patwalia submitted that 34% of the 58,000 candidates are unopposed at present.
“None of these candidates have been impleaded...these 34% are not the issue...how can we set aside the elections without any adjudication of facts on an election petition? The election is to be held on May 14...how do we accept the email nominations and change the list now?”, countered Mr. Dwivedi.
“May 14 is a tentative date...the relevant order has not been placed before Your Lordships”, responded Mr. Patwalia.
Rule 40(3) of the West Bengal Panchayat Election Rules of 2006, providing that where the number of candidates is equal or less than the number of seats to be filled in any constituency, all such candidates may be declared to have been duly elected, was referred to.
In view of the concerns regarding the acceptance of nomination papers filed electronically and the applicability of the IT Act as held by the division bench of the Calcutta High Court, Chief Justice Misra remarked, “without any amendment to the election law, the High Court could not have held so under Article 226...no writ could lie...”
The Chief Justice laid reliance on the 1975 apex court judgment in Nanhoo Mal v. Hira Mal, wherein it was held that “The election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. The election itself can be questioned only on one or more of the three grounds mentioned in Sub-section (2) of Section 43-B. The only ground in the present case on the basis of which the election of the President was questioned in writ jurisdiction of High Court was that there was a non-compliance with the provisions of Rule 6 made under the Act. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge." In the circumstances, there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question...”
High Court Judgment
A division bench of Calcutta High Court has directed the State Election Commission to accept the nomination of the intending candidates to panchayat elections in the state, who had sent their papers through e-mail, before the last date.
The Communist Party of India (Marxist) had approached the high court against the State Election Commission for rejecting the nominations through e-mail to the Election Commission as well as to the Returning Officer. As the single bench refused their prayer, the party approached the division bench in appeal.
The main contention was that the Information Technology Act, 2000 read with Section 90 thereof permits the State Election Commission to accept nominations sent through e-mail and that there is a mechanism in the website of State Election Commission to accept nomination papers through e-mail.
When the court asked the commission about the acceptance of nomination through WhatsApp, it was submitted that the said intending candidates had gone physically to the office of the Commission to submit their nomination papers and pursuant to order passed by the single bench, such nomination papers were accepted on the basis of whatever documents they had filed with the Commission through WhatsApp communication.
The bench observed: “The State Election Commission has been constituted under section 3 of the West Bengal State Election Commission Act, 1994 (hereinafter referred to as the Act of 1994) with Constitutional sanction. It, therefore, does not strictly come within the ambit of section 6(1)(a) of the Act of 2000 to be a body or agency owned or controlled by the appropriate Government. Similarly, the State Government is not called upon to make rules in terms of section 90 of the Act of 2000 in respect of filing of nomination forms through email. It is for the State Election Commission – being a Constitutional body/authority – to provide for the same, as filing of nomination through e-mail invariably prevents large-scale violence centering around the Panchayat elections and above all, bloodshed and loss of precious human life. Further, it eliminates hurling of accusations and counter-accusations and encourages peaceful and wider participation. Above all, it upholds the democratic principles which form a pivotal part in the Panchayat election process and is not to its derogation but on the contrary, furthers it. To that extent, the relevant provision of the Act of 2000 shall be deemed to be read into the applicable provision of the Act of 2003 in respect of filing of nomination papers, purely by implication. As such, though filing of nomination through e-mail is not a recognized procedure under the Act of 2003 or the rules framed thereunder, in a situation where allegations of obstruction of intending candidates from filing of nomination papers has surfaced and has been also noted by the State Election Commission in its order dated 9th April, 2018, it was incumbent upon the State Election Commission to allow filing of nomination papers through e-mail if the same had been received by the Commission within the cut-off time on 23rd April, 2018, in order to dispel all criticism against it. The provision of the Act of 2003, the rules framed thereunder, read with the provisions of the Act of 1994, however, leaves no manner of doubt that cooperation of the State Government is an integral part for effective functioning of the State Election Commission.”
“The State Election Commission, being a Constitutional body has to act fairly, transparently and independently to advance the democratic principles by allowing willing candidates to contest and at the same time provide for more options to the electorate to choose. When large scale allegations as to its independence, transparency and fairness had been made, it should have acted with caution and diligence. It ought to have considered allowing filing of nomination through e-mail and also accepted such nominations. This would have made all allegations against it virtually otiose,” the bench added.
The court then directed the State Election Commission to accept the nomination of all the candidates nominated by the party, who have duly filed their nomination and submitted the same electronically to the Panchayat Returning Officers or the State Election Commission within 3:00 pm on April 23.
Read the Order & High Court Judgment Here