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The Calcutta High Court has directed the State Election Commission (SEC) to decide on whether central paramilitary forces are required to hold peaceful elections during upcoming civic polls.

The SEC is to hold a meeting with Chief Secretary and Home Secretary and DGP within 12 hrs to assess the ground situation at Bidhannagar area and decide whether the deployment of CAPF is required.

The Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj noted in its order, 

"In case, if the Commissioner, State Election Commission forms an opinion that deployment of the paramilitary forces during Bidhannagar Municipal Corporation election is not necessary, then he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held in Bidhannagar."

The Court was hearing a bunch of petitions seeking deployment of central paramilitary forces during the upcoming municipal polls in Bidhannagar, Siliguri, Asansol and Chandernagore on February 12, 2022, the results for which will be announced on February 14. These elections were postponed due to the Covid-19 pandemic. 

During the hearing on Wednesday, a petitioner represented by Adv. Pinky Anand, prayed for the following:

• Deployment of central paramilitary forces to ensure free and fair elections. Bidhannagar particularly has a violent history, Anand submitted. Anand referred to various incidents which took place in the past month after the civic polls like molestation, beatings, threatening and taking down of banners. 
• Anand also prayed for counting of votes to be done simultaneously with votes of 108 municipal body election which will take place on February 27.
• Anand also challenged the State Election Commission notification which states that polling agents can only be from the area of the polling station. Anand contended that such mandate is contrary to Election Commission of India's notification dated 15/4/2021 which states that polling agents are allowed from same assemble constituencies.

Senior Counsel for SEC Jayanta Mitra submitted that under Article 243ZA of the Constitution the SEC has been given the power to assess such situations and take a call. On the issue of polling agents, Mitra submitted that this is an exclusive decision of SEC and unless it is glaringly unlawful, it can not be interfered with. On the issue of simultaneous counting of votes he submitted that, if votes are kept from counting then the EVM stay detained. On being quizzed that declaration of result in one municipal body can influence voters in other areas, Mitra referred to voting out of Indira Gandhi and submitted, "I never underestimate voters."

The Court put reliance on Basabi Raichoudhury vs. State of West Bengal and opined that the SEC has been vested with the responsibility to ensure free, fair and fearless elections, to assess the ground situation and to take a decision in respect of deployment of paramilitary forces if the circumstances so demand.

"Instances have been pointed out to this Court about the violence during election and post-poll violence on the earlier occasions during elections in Bidhannagar. Hence, the Election Commission along with the State Authorities is required to do reappraisal of the ground situation prevailing in Bidhannagar and take a decision to deploy the paramilitary forces if required," the Court opined. 

As regards to polling agents, the Court observed that the decision has been taken to ensure peaceful poll and these orders reveal that such a condition has been imposed from the security point of view to prevent any person who is not an elector of the polling station area concerned to function as a Polling Agent or Relief Agent. The Court further opined that the SEC has taken such decision under 243-ZA of the Constitution which vest the SEC with the requisite powers to take necessary steps for conducting the election.

Adv. Sabyasachi Chatterjee representing one of the petitioners had relied on the Handbook for Polling Agents, 2014 on this issue and had stated that the notification of SEC is contrary to the same. However, the Court opined that the Handbook for Polling Agents, 2014 is in the nature of guideline and it is not in respect of local body elections and even otherwise the orders of the SEC are not in conflict with those guidelines.

On the issue of simultaneous counting of votes, the Court referred to State of Goa and Another vs. Fouziya Imtiaz Shaikh and Another which had held that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non obstante clause contained in Article 243-ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. Hence, the Court opined that,

"it is for the Election Commission to consider the prayer for simultaneous counting in all the Municipal Corporations or for the declaration of results of all the Municipal Corporations at the same time. While taking such a decision, the Election Commission is expected to keep in mind the plea that declaration of result of one Municipal Corporation may affect the elections scheduled soon thereafter in other Municipal Corporations/Municipalities."

The Court thus directed the petitioner to file representation before SEC within 24 hours then the same will be considered and appropriate decision in accordance with law will be taken by the SEC within 48 hours.

The Court also directed the SEC to ensure CCTV cameras in polling booths in accordance with its earlier order. 

Cause Title: Mousumi Roy vs West Bengal State Election Commission & Ors.with Pratap Banerjee Vs. The State of West Bengal & Ors.