The Calcutta High Court bench of Chief Justice Prakash Srivastava and Justice Ajoy Kumar Mukherjee has directed the West Bengal State Election Commission (WBSEC) to consider postponing the civic polls to be held in 4 corporations on January 22, due to a "galloping rise" in Covid-19 cases.
The applicant has sought postponement of the dates of the elections of above Municipal Corporations on the plea that the state of West Bengal has been hit with the 3rd wave of Covid-19 pandemic and that on December 27, 2021 there were only 439 Covid-19 positive cases which have leapfrogged to 6153 cases as on January 2, 2022.
Considering the current pandemic situation in the state, an apprehension has been expressed that life of the residents of the state will be put to threat if the elections are held wherein large gatherings and mass procession is imminent.
On the date of last hearing, the counsel for West Bengal State Election Commission (SEC), Adv.Jayanta Mitra had referred to Section 8 of the West Bengal State Election Commission Act, 1994 and submitted that the Election Commission can defer the date of election only in consultation with the state.
He had also submitted that proper steps have already been taken for holding the elections. Adv. Mitra had stated that the Election Commission does not have the power to defer the elections once notified unless the state requires it to defer the same under the Disaster and Management Act.
Per contra, the counsel for the state, Adv. Samrat Sen had taken the stand that it is within the exclusive jurisdiction of the Election Commission to defer the date of elections.
The Court after hearing all parties noted that under Article 243-ZA of the Constitution, the State Election Commission is vested with powers in respect of conduct of elections to Municipal Corporations.
"Section 5 (1) of the West Bengal Election Commission Act in similar terms provides that the superintendence, direction and control of preparation of electoral roles for, and the conduct of all elections to the Municipalities will vest in the Commission," the order further states.
Also relying upon the Supreme Court's decision in State of Goa and Another vs. Fouziya Imtiaz Shaikh and Another, wherein it was held that from the date of notification of election till the date of declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243-ZG of the Constitution, the Court said,
"...if the assistance of the writ court is required in subserving the progress of the election and facilitating its completion, the writ Court may issue orders."
However, "it has been very categorically held that it is entirely upon the State Election Commission to set the election process in motion or, 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," the Court noted.
Thus, the Court came to the conclusion that the State Election Commission is vested with the power to take a decision in respect of deferment of the date of the elections if the situation so arises, in order to ensure free and fair elections.
The Court further noted that even though according to Apex Court decision in Bharati Reddy vs. State of Karnataka and Others, the High Court can defer elections but in this case the State Election Commission should take into account the prevailing Covid-19 situation in the state and the Municipal Corporations where elections are to be held and take an appropriate decision to defer the dates of polling.
Thus, the Court directed "the State Election Commission to consider the galloping speed with which the Covid-19 cases are increasing and also to take into account the issue if holding of elections in such a situation, will be in the public interest, and if free and fair elections will be possible on the dates notified, and take a decision in respect of the postponement of date of elections of 7 aforesaid four Municipal Corporations for a short period of 4 to 6 weeks."
The WBSEC is to take a decision within a period of 48 hours. The petitioner has been directed to submit all the relevant material relating to existing Covid-19 situation before the Election Commission without any delay so that it can be considered by the Election Commission while taking the decision.
Cause Title: Bimal Bhattacharya vs State of West Bengal & Ors.
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