Court asks two questions

TT, Calcutta, Oct. 8: The clauses under which the Mamata Banerjee government has appointed a serving officer as the "temporary" state election commissioner have been challenged in Calcutta High Court.

Barrister Samaraditya Pal today moved a writ petition, seeking the quashing of sub-sections 2a and 2b of Section 3 of the State Election Commission Act, 1994.

Pal, who had represented the state election commission headed by Mira Pande in its legal battle with the Bengal government, contended that these sections were "unconstitutional".

The barrister expressed fears that the appointment of a serving officer could lead to the "rape of democracy" since such a person was not independent from the government of the day.

The court is expected to pursue with Pal two questions tomorrow (when repolling is also scheduled in 11 booths).

The first question deals with the process through which the national election commissioners are selected. The second issue refers to the law, if any, under which the interim poll chief can be restrained for the time being.

This morning, Amitava Majumdar, a chartered accountant, filed a petition asking for a stay on the appointment of Alapan Bandyopadhyay as interim poll chief.

However, in the afternoon when the matter came up before Justice Dipankar Dutta, Pal, appearing for the petitioner, said he was praying for the scrapping of the controversial sub-sections in the state law.

Pal referred to the order passed by Justice Biswanath Somadder on May 10, 2013, in the case between the election commission under Pande and the state government over deployment of central forces during the panchayat polls.

"Justice Somadder had held that the state election commission enjoys supreme powers while conducting panchayat and civic polls, comparable to that enjoyed by the central election commissioner while conducting Assembly and parliamentary elections," Pal said.

He added: "Therefore, a person of such a stature as the state election commissioner should be an independent person. A government employee cannot be an impartial person and fit for holding such a post."

Justice Dutta asked Pal: "Article 243k of the Constitution does not mention who can be appointed as state election commissioner. So anyone can be appointed. Why are you apprehending that he (the interim chief) must bow to pressure from the government?"

Pal responded: "Historically, we are assuming that such a person would bow to pressure from the government. The former state election commissioner, Upadhaya, had admitted that he had been facing tremendous pressure from the government. Is there any reason not to believe that he would bow to pressure from the government? If this type of action by the government is allowed to continue, then the Constitution will be raped and we will have to move court again and again."

Justice Dutta said: "Tell me how the central election commissioners are appointed."

Pal told the judge that he would do so tomorrow. "We are praying for an interim order restraining the acting state election commissioner from taking any decision regarding the conduct of the polls till the disposal of the case," Pal added

Justice Dutta said: "Then tell me, under what law can I pass an interim order... at this stage and without setting aside the two sub-sections of the act."

Pal is expected to respond tomorrow to the question.