High Court allows GTA election to be held and completed as per the schedule.

The challenge to the constitutional validity remains and will be considered by the Court on a later date convenient to all the parties

KalimNews, 24 June 2022: Disposing a matter of writ petition CAN 4 of 2022,  Calcutta High Court, refused to put a stay order on the ongoing process of the Gorkhaland Territorial Election which is scheduled to be held on 26 June 2022.

Justice Moushumi Bhattacharya in her nine page order with 15 points denied to grant the relief as prayed by the Gorkha National Liberation Front and stay the election process which was initiated from 10th May, 2022 or restraining the respondents from giving any effect to the election results till the writ petitions are heard out. 

The order also stated that the challenge to the constitutional validity remains and will be considered by the Court on a date which is convenient to all the parties and with the leave of the Court. The parties shall be at liberty to mention for an early date for hearing of the writ petitions.

The petition vide  WPA 12212 of 2012 With CAN 4/2022 was heard on 21 June 2022 and later on 23 June too.

The writ application was filed by Gorkha National Liberation Front (GNLF) for setting aside of a notification of the state government dated 10th May, 2022 and for stay of operation of the same. 

The application was considered by a co-ordinate Bench on 19th May, 2022 wherein it was directed for the matter to be fixed for hearing on 21st June, 2022 at 10.30 am. The application was mentioned before this Court on 20th June, 2022 and was listed on 21st June, 2022. 

It further states that the applicant, who is one of the two petitioners along with Mr. Subhash Ghising, the President of the applicant political party, has challenged the constitutional vires of The Gorkhaland Territorial Administration Act, 2011 (the GTA Act) on the ground that no constitutional amendment has yet been carried out to delete the expression “Darjeeling Gorkha Hill Council” in Article 243M(3) and Article 243ZC of the Constitution of India and substitute the said expression with the name of the body constituted under the GTA Act. 

The immediate relief sought for is for stay of the election for the Gorkhaland Territorial Administration Sabha under Section 5 of the GTA Act, 2011 which is scheduled to be held on 26th June, 2022. 

According to Mr. Subir Sanyal, learned senior counsel, constitution of Panchayats under 3 Article 243B is hence done away with for the hill areas of Darjeeling district and Article 243ZC(2) gives immunity to the powers of the Darjeeling Gorkha Hill Council. 

Counsel also reminded of the order of the Supreme Court dated 12th April, 2019 by which the High Court was requested to decide the writ petition challenging the vires of the GTA Act. and as per the affidavit filed by the Union of India which states that the constitutional amendment to Part IX of the Constitution has not been carried out till date. 

The main plank of challenge however remains that section 34 of the GTA Act empowers the Gorkha Territorial Administration to supervise Zilla Parishad, Panchayat Samities, Gram Panchayats and municipalities which cannot be permitted without carrying out the amendment to Articles 243M and 243ZC of the Constitution. 

The learned Advocate General appearing for the State respondents opposed the prayer for stay of the Notification of 10th May, 2022 primarily on the ground of balance of convenience. The GTA Act came into force on 14th March, 2012 and the GTA (Election) Rules, 2012 were published on 4 15th March 2012. Section 74 of the GTA Act came into force on 2nd August, 2012 by which the Darjeeling Gorkha Hill Council Act, 1988 (the DGHC Act) stood repealed. Pursuant to the GTA Act coming into force on 14th March, 2012 devolution of administrative, financial and executive powers together with transfer of right, vesting of properties, appointment of administrative personnel, delimitation of constituencies have already taken place. 

The present application was moved before a co-ordinate bench which also did not favour the applicant with an order for stay of the election process. The learned Judge noted the absence of any order for stay of the operation of the GTA Act and the fact that the Act has been in force since 2013. 

The counsel of the state mentioned that all the polling procedures for holding the election on 26th June, 2022 is almost completed along with casting of votes by officials on election duty and presently 277 candidates are in the fray in respect of 45 GTA constituencies and a total of 922 polling stations already set up with 4702 polling personnel having been deployed. 

As EVMs have been checked and commissioned, election-related materials and printing of ballots have also been completed the Court cannot shut its eyes to the enormous deployment of resources for the elections. The flow of events continued unabated thereafter and without any intervention by the applicant, the applicant could have taken steps after 19th May, 2022 for urgent interim relief since the applicant was fully aware of the scheduled date for the elections. 

Having not done so and allowing much water to flow under the proverbial bridge, the applicant cannot now compel the Court to pass an interim order riding on the constitutional challenge to the GTA Act, the court opined. 

The court order stated that the matter was mentioned on 20th June, 2022 and listed on 21st June, 2022. Three days are simply not sufficient to hear and decide a constitutional challenge to an Act which has been in force since 2012. It is also pertinent to mention that there is no allegation of any breach of the GTA Act or the GTA (Election) Rules, 2012. An interim order passed by a learned single Judge on 27th July, 2012 in WP 12212(W) of 2012 directed that the election and assumption of office by the elected would abide by the result of the writ petition. This Court is of the view that this interim order sufficiently protects the writ petitioners and there is hence no immediate justification to stall the election process two days before the constituencies are scheduled to vote. 

The accepted legal position is against intervention in election processes. This would be evident from several decisions of the Supreme Court including Shaji K. Joseph vs. V. Viswanath; (2016) 4SCC 429 where the Supreme Court deprecated the practice of courts interfering with election processes. The same view was reiterated by the Supreme Court in Supreme Court Bar Association vs. B.D. Kaushik; (2011) 13 SCC 774 where it was held that once the election process has started the courts should ordinarily not interfere by way of granting injunction. This Court also finds substance in the argument that there is a presumption of validity of the GTA Act, 2011 at least for grant of interim relief since the writ petitioners have not been successful in obtaining a stay against the implementation of the said Act. Reference in this context may be made to Health for Millions vs. Union of 9 India; (2014) 14 SCC 496 and Vijay Singh Gond vs. Union of India; (2007) 3 SCC 519 where the Supreme Court held that courts should be extremely reluctant to pass any interim order in matters involving challenge to the constitutionality of any legislation enacted by the legislature. In Vijay Singh, the risk of granting an interim order was noted by the Supreme Court and it was held that interim relief against legislation would prevent the legislation to operate and result in complication and confusion.