Poll primacy stuck in legal ambiguity

A.K. Singh

MEGHDEEP BHATTACHARYYA AND TAPAS GHOSH, TT, Apr 16, 2018, Calcutta: After Mira Pande in 2013 and S.R. Upadhayay in 2015, A.K. Singh is the latest state election commissioner to face pressure to toe the Mamata Banerjee government's line on rural and civic polls in Bengal.

Lawyers and bureaucrats have said there will be tussles between future state poll bosses and the government until and unless the judiciary conclusively resolves the fundamental question of primacy.

There has been persistent ambiguity over who, between the commission and the state government, has the final say on matters pertaining to local elections in Bengal.

The issue has been haunting since Pande dragged the Mamata Banerjee government to court over the conduct of panchayat polls of 2013.

An IAS officer with years of experience in holding elections has said the fundamental problem lies in Section 8 of the West Bengal State Election Commission Act, 1994, which says the state government "shall, in consultation with" the commission fix the date or dates of elections.

Mira Pande

The Section is duplicated in Section 36 (3) of the West Bengal Municipal Elections Act, 1994, and Section 42 of the West Bengal Panchayat Elections Act, 2003.

"This clause in the state law has created the ambiguity on whether the government or the poll panel enjoys primacy in rural and civic polls," he said.

A Calcutta High Court lawyer said the state government had been using lack of clarity to interfere in the polls, though Article 243K of the Constitution gives the commission the "superintendence, direction and control" of the entire election process.

"Let us not go into moralistic judgements on whether the government should interfere. The fact remains it can, with the law of the land backing the interference. The law, therefore, needs to be changed and contradictions with constitutional provisions need to be eliminated," said the lawyer.

In 2013, the commission under Pande had moved court, appealing that Section 42 of the Panchayat Act be struck down as ultra vires of the Constitution.

Lawyers said other aspects of Pande's 2013 case, such as the deployment of central forces and multi-phase polls, had been conclusively answered by the single-judge bench of Justice Biswanath Somadder and the division bench of then Chief Justice A.K. Mishra and Justice Joymalya Bagchi of the high court, and later by the vacation bench of the Supreme Court.

But the question of primacy was left unanswered by all the three courts.

A retired IAS officer said the state's logic had always been based on those Sections of the legislation. "But the accepted understanding is whenever there is a conflict between constitutional provisions and state legislation, the former would prevail," he said.

Another advocate said in 2013, the Supreme Court saw ensuring the conduct of proper panchayat elections as its main task and it did not want to get into the issue of which side had primacy. "Somebody needs to move the Supreme Court and seek consideration by a Constitution bench. An order in this regard by such a bench would be deemed full and final," he said.