Calcutta High Court asks panel to decide on poll deferral

SEC was directed to decide within 48 hours whether polls to four civic bodies scheduled for January 22 could be postponed by four to six weeks

Tapas Ghosh   |   TT  |  Calcutta   |  15.01.22  :  Calcutta High Court on Friday directed the State Election Commission to decide within 48 hours whether polls to four civic bodies scheduled for January 22 could be postponed by four to six weeks in the backdrop of a surge in Covid-19 cases and told the panel that it had the power to defer the date.

A division bench, which consisted of Chief Justice Prakash Shrivastava and Justice Ajoy Kumar Mukherjee, said in its seven-page verdict: “Hence we dispose of the present petition with a direction to the SEC to consider the galloping speed with which Covid cases are increasing and also to take account the issue if holding of election in such situation will be in the public interest and if free and fair election is possible on the date notified and take a decision in respect of postponement of the election for short period of 4 to 6 weeks….”

The order also said: “The State Election Commission is directed to take a decision in this regard within a period of 48 hours.”

The division bench delivered the verdict in response to a PIL filed by social activist Bimal Bhattacharyya seeking an order asking the SEC to postpone the January 22 civic polls in view of the spike in the Covid cases in the state.

During the hearing of the case on Thursday, the state government and the SEC had expressed two divergent views about the postponement or the cancellation of the polls to the municipal corporations in Siliguri, Asansol, Chandernagore and Bidhannagar.

The state government had said that SEC had the sole power to postpone or cancel any civic or panchayat poll. The SEC had countered the government’s claim and said it needed the state’s approval to postpone or cancel the January 22 polls.

The division bench in its verdict on Friday brought an end to the controversy by citing verdicts of the Supreme Court.

The high court said: “…from the date of election till the end of declaration of results a judicial hands-off is mandated by non-obstante clause contained in Article 243-ZG of the Constitution. It had been clarified that bar contained in Article 243-ZG(a) applies only to the Court’s and not to the Election Commission which is to supervise, direct and control preparation of electoral rolls and conduct the election to the municipalities.”

It went on to add: “It has further been clarified that if the assistance of the is writ court is required in subserving the progress of the election and facilitating its completion, the writ Court my issue orders.”

The order also stated: “It has been categorically held that it is entirely upon the State Election Commission to set the election process in motion, in any case where the constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied.”

“Considering the issue relating to the Legislative Assemblies of the State Hon’ble Supreme Court in the matter of Special Reference No 1 of 2002, In Re, (2002) 8 SCC 237 has held that the superintendence, direction and control of electoral roles and conduct of election is within exclusive domain of Election Commission under Article 324 and it is the duty of Election Commission hold free and fair elections at the earliest,” the bench said in its order.

In its conclusion, the order said: “…it is clear that that the State Election Commission is vested with the power to take a decision in respect of deferment of the dates of elections if the situation arises in order to free and fair elections.”

At the administrative level, sources in the SEC said its officials were in touch with the state government to arrive at a consensus on whether the civic polls should be deferred. The sources said the commission was inclined towards postponing the January 22 polls.

Responding to the court’s order, a former state electoral officer said on condition of anonymity that the SEC had the right to unilaterally postpone the polls on the basis of its assessment of the situation.

“If there is a devastating earthquake at places where polls will be held, will the SEC go ahead with the election?” the former electoral officer asked and advised the SEC to take cue from the court’s order and defer the elections.

Reacting to the court’s order, Opposition parties, which have been demanding postponement of the polls, took potshots at the SEC.

State Congress chief Adhir Ranjan Chowdhury said: “What kind of passing the buck is this? Why can't the commission take a call? Why would the high court have to interfere? Is the state government incapable of deciding on its own?”

Stating that the BJP had been demanding deferment of civic polls, state party chief Sukanta Majumdar said: "The court must have been stricter and asked the poll panel to defer the polls without pushing the ball to their (SEC) court.