“ECI’s decision to ‘prioritize’ Bhowanipur for by-poll elections is illegal, arbitrary and devoid of constitutional backbone”, Plea Before Calcutta High Court

  • Salil Tiwari
  • 11:40 AM, 13 Sep 2021

A plea has been moved before the Calcutta High Court alleging that the Election Commission of India’s (ECI) decision to prioritize by-polls in the Bhowanipore in West Bengal from which unelected Chief Minister Mamta Banerjee is set to contest by-poll elections on Sep 30, is illegal, arbitrary and devoid of constitutional backbone.

Adv. Sayan Banerjee’s public interest litigation (PIL) was mentioned on Sep 9 before the division bench of Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj. The division bench listed the matter on Sep 13 to be heard before itself.

Stating that the petition has been filed to address the pivotal question of the integrity of ECI, among other prayers, the petitioner has prayed for an interim order of injunction against the ECI's September 4 press note regarding the election schedule.

The petitioner has averred that the ECI took the decision stating the ground of exigency based on a letter of State Chief Secretary communicating the incumbent Chief Minister's intention to contest in the elections from Bhowanipur seat this time.

He has contended that ECI’s decision prioritizing Bhowanipore is unreasonable, mala fide and based on undue influence caused by an unelected Chief Minister to interfere with free and fair elections.

The petitioner has further averred that any decision arrived on the basis of such classification is bad in law and liable to be set aside.

The petitioner has also alleged that the incumbent Chief Minister has utilized her office for the purpose of conducting the elections and an executive subordinate like the Chief Secretary of a state cannot exercise his administrative powers to influence the ECI, legally.

The petition reads that it is not the duty of the ECI to fulfill the vacuum anticipated by a mere Chief Secretary who is a mere executive subordinate and seems too enthusiastic to pursue the intentions of a Chief Minister.

It has also been alleged that in forwarding the Chief Minister's intention with respect to the elections, the Chief Secretary has also acted beyond the service rules, in general and under Rule 5(4) of All India Services (Conduct) Rules, 1968, in particular.

The rule states that "no member of the Service shall canvass or otherwise interfere with, or use his influence in connection with, or to take part in, an election to any legislature or local authority..."

Therefore, the petitioner has contended that the West Bengal State Chief Secretary has created an extraordinary situation to favor the incumbent Chief Minister.

The petition also highlights that the said ECI press note not only discloses some unwarranted and unprecedented factual background of the decision but also reveals how a high-ranked government official has made official communication citing exigencies for election, so as to favor the Chief Minister.

Stating that this matter is unique, the petitioner has averred that the matter presents an unprecedented situation where the Chief Secretary has assumed the political duty of an individual minister in order to assist her to influence the ECI.

Addressing this matter as a clear case of jurisdictional encroachment of the domain of legislature by the executive, the petitioner has contended that it is violative of Article 163 and 164 of the Constitution of India.

Therefore, the petitioner has averred that this action of the ECI not only illegal, and arbitrary but also devoid of any mark of procedural reasonableness, of constitutional backbone, and is done with a mala fide motive to favor one particular individual.

The ECI has announced that the by-elections in Bhowanipore Assembly Constituency in West Bengal will be held on September 30 and the counting of votes will be on October 3.

On Friday, September 10, the Chief Minister, Mamata Banerjee filed her nomination for Bhowanipore assembly seat by-polls.

The by-polls are crucial for Banerjee, who lost the election in Nandigram in May, has to win this by-poll to retain the chief minister's post as according to Article 164(4) of the Indian Constitution, an unelected Minister ceases to be a Minister if for six consecutive months he/ she is not a member of the state legislature.

Case Title: Sayan Banerjee vs. Election Commission of India and Others