W.B. State Election Commission Vs Communist Party of India (Marxist)

Published on: August 16,2021

Case type- Civil appeal

Case no.- Civil Appeal No .8515 Of 2018 (Arising Out Of SLP (C) No 12590 Of 2018) and Civil Appeal No.8516 Of 2018 (Arising Out Of SLP (C) No 15123 Of 2018)

Decided on- 24.08.2018

Petitioner- W.B. State Election Commission

Respondent- Communist Party of India (Marxist)

Justice- Hon’ble Chief Justice of India Dipak Mishra, Hon’ble Justice Dr D Y Chandrachud and Hon’ble Justice Am Khanwilkar

Statues Referred-

Information Technology act, 2000-Section 6, Section 90; Constitution of India- Article 32, Article 142, Article 226, Article 243(K); West Bengal Panchayat Election Act, 2003- Section 42, Section 43, Section 46(1), Section 47, Section 48, Section 49, Section 51, Section 52, Section 64, Section 77, Section 79, Section 80, Section 84, Section 93 and Section 94.

Case referred- Boddula Krishnaiah v State Election Commissioner, NP Ponnuswami v Returning Officer, Lakshmi Charan Sen v AKM Hassan Uzzaman and Mohinder Singh Gill v The Chief Election Commissioner

Facts

• Not Verified Signature After the procedure for elections to digitally signed by Satish Kumar Yadav the panchayats in West Bengal began, a Division Bench of the Calcutta High Court issued orders to the State Election Commission on 2018.08.24 to accept nominations filed in electronic form. The candidates’ names were ordered to be included in the list of candidates running in the 2018 panchayat elections.
• The High Court was aware that the provisions of the Information Technology Act 2000 did not apply to the West Bengal State Election Commission, which is a constitutional entity, when it issued these directives. Nonetheless, the High Court decided that the Information Technology Act of 2000 should be regarded to be read into the West Bengal Elections Act of 2003. The High Court issued directions for the acceptance of nominations in electronic form, stating that such a construction would advance the democratic process and facilitate a fair and free election.
• The West Bengal State Election Commission has contested the High Court’s decision in these proceedings. The following interim directions were issued by the Court on 10 May 2018:

1. The impugned judgment and order dated 8.5.2018 passed by the Division Bench of the High Court shall be stayed;
2. The Panchayat election scheduled for 14.5.2018 shall proceed as per law;
3. The petitioners
4. The constituency election process must be completed in all respects, and the election results must be announced in accordance with the legislation; and
5. Without the permission of this Court, the petitioners shall not disclose the results in constituencies where there has been no contest.

• West Bengal’s state government announced on March 31, 2018, that panchayat elections will be held on May 1, 3, and 5. The State Election Commission, acting under Sections 42 and 43 of the West Bengal Panchayat Elections Act 2003 (“Panchayat Elections Act”), issued a schedule for the upcoming panchayat elections. The election calendar for gram panchayats, panchayat samitis, and zilla parishads administered by the West Bengal Panchayat Act 1973 was set forth in the first notification issued by the State Election Commission in respect of twelve districts.
• The deadline for submitting nominations was 9 April 2018; nominations were to be scrutinized on 11 April 2018; candidates might withdraw their candidacies until 16 April 2018; and the poll, if necessary, was to be held on 1 May 2018. Two more notifications, all dated April 2, 2018, revealed the election schedules for two districts and six districts, respectively. The election schedule remained the same, with the exception of the polling days, which were May 3 and 5, 2018. 6 On April 6, 2018, Adhir Ranjan Chowdhury of the Indian National Congress filed a public interest lawsuit in the Calcutta High Court, challenging the poll notification.
• Simultaneously, the Bharatiya Janata Party (BJP) filed a writ petition within the Court under Article 32 of the Constitution, including a prayer (extracted below) seeking a directive to simply accept nomination papers by e-mail:

“issue an appropriate writ, order, or directive within the nature of mandamus compelling Respondent No 6 to require prompt steps to organize nomination papers for the state State Panchayat Elections 2018 through email.”

• On April 9, 2018, a two-judge bench of the Court decided the writ petition. Based on newspaper reports, a complaint was filed with the Court alleging that candidates seeking to run in the panchayat elections were being denied access to gather and submit nomination papers as a result of the ruling party’s supporters’ violent activities in the State. The Court took note of this statement:

Using newspaper reports from the Times of India, Kolkata editions dated 03.04.2018 and 04.04.2018, the Statesman, Kolkata edition dated 04.04.2018, and the Telegraph e-paper preview, and the petitioner’s learned senior counsels submitted that the petitioner’s candidates who want to contest the panchayat election in the State of West Bengal are not eligible.

• The Court did, however, take note of the complaint that candidates were unable to submit their nominations:

“However, the truth remains that, in line with newspaper reports filed with the writ petition, incidents of violence occurred when the candidates visited obtain and file their nomination papers, as remarked by the learned senior counsel for the petitioner. this is often also supported by the state Election Commission’s notification dated April 5, 2018, during which the State committee granted an alternate location for filing nomination papers..”

• Using newspaper reports from the Times of India, Kolkata editions dated 03.04.2018 and 04.04.2018, the Statesman, Kolkata edition dated 04.04.2018, and the Telegraph e-paper preview, the learned senior counsels for the petitioner claimed that the petitioner’s candidates who want to contest the panchayat election in West Bengal are not allowed to collect the nomination form and to submit the same in the face of violent opposition from the ruling party’s supporters.
• The State Election Commission, acting under Section 46(2) of the Panchayat Elections Act, issued directives on 9 April 2018, extending the deadline for submitting nominations by one day, to 10 April 2018. The State Election Commission stated the following grounds for issuing this directive:

“Whereas, many intending candidates were unable to file their nomination papers as a results of the above disruption; and Whereas, some nomination papers that the Political Parties allegedly couldn’t submit before the Panchayat Returning Officers, are annexed.”

• The State Election Commission’s order extending the deadline for filing nominations was revoked the next day, on April 10, 2018. The BJP filed a writ petition with the Calcutta High Court, asking for directives on nominations and police support, among other things. The legitimacy of the order dated 10 April 2018 was called into question by a supplementary affidavit. The Calcutta High Court has issued an interim order suspending the State Election Commission’s notification dated 10 April 2018. The BJP also filed a Miscellaneous 3 AST 9 of 2018 Application with this Court on April 11, 2018.
• The Court granted permission to appeal to the Calcutta High Court, where the case was still pending. The High Court ordered the State Election Commission to tell the Court on affidavit of the procedures taken in accordance with its direction of 10 April 2018 and the order of this Court dated 9 April 2018 before proceeding with the electoral process. On April 16, 2018, an intra-court appeal against the order was dismissed, with a request to the learned Single Judge to resolve the outstanding procedures.
• On April 20, 2018, the learned single judge of the High Court issued a ruling in which the following orders were given:

1. The order of the Commission dated 10 April 2018 canceling the extension of the day/date for filing nominations is overturned;
2. The Commission is directed to issue a new Notification extending the day/date for filing nominations after consulting with the State and the major collective stakeholder groups.
3. The Commission will thereafter reschedule the remaining election dates in accordance with the statutory framework.
4. The Commission will subsequently continue the election process as stated by (II) above, starting with the extended day/date for filing nominations.
5. The cost of Rs.5,00,000/- (Rupees five lakhs only) as directed to be deposited by the petitioners in AST 9 of 2018 by order of the 12th April, 2018 and, as deposited, shall be forwarded to the Commission’s account by the learned Registrar General, High Court at Calcutta as part of its secretariat costs.

• The State Election Commission issued a statement on April 21, 2018, extending the deadline for filing nominations to April 23, 2018, setting April 25 as the date for scrutiny, and April 28 as the deadline for withdrawal of candidacy. After being petitioned by several of the prospective candidates, the High Court urged the State Election Commission to assure the acceptance of nomination papers on April 23, 2018. The High Court was served with three writ petitions. The learned Single Judge rejected to meddle with the election process in a ruling dated April 24, 2018, stating that:

“This Court cannot still ignore the actual fact that the ruling of April 20, 2018 has been recognized and implemented. The INC’s participation, as evidenced by the records produced by the Commission in Court today, reveals that each of their viewpoints was taken into account prior to the Commission using its prerogative in consultation with the State Government to re-extend the nomination deadline. In light of the foregoing sequence of events, this Court does not find Mr Ghosal’s claim that the Commission acted in haste acceptable. As a result, this Court does not seek to further disrupt the electoral process and does not intervene in this petition by issuing any directives.”

• The BJP’s Writ Petition 4887 (W) of 2018 and the Party for Democratic Socialism’s Writ Petition 4886 (W) of 2018 were likewise dismissed. On April 25, 2018, the CPI (M) filed a writ petition 4 under Article 226 seeking, among other things, directions for

1. setting aside the entire election process;
2. removal of the State Election Commissioner;
3. permission to file nominations in electronic form;
4. deployment of security personnel other than those under the control of the state government under 4 AST 11 of 2018;
5. appointment of special officers responsible to the Court; and
6. recording video footage of the entire process.

• The only relief sought by CPI (M) during the hearing before the learned Single Judge on April 25, 2018 was that the State Election Commission recognize nominations that had already been filed in electronic form. The writ petition was denied by the learned Single Judge of the High Court.
• The State Election Commission published polling dates for 14 May 2018 on April 26. New writ petitions were filed before the learned Single Judge of the Calcutta High Court on May 1, 2018. In light of its previous orders, the High Court refrained to issue any more directives. The CPI (M) filed an appeal with the Division Bench, challenging the learned Single Judge’s orders. While dismissing the appeal, the Division Bench directed the State Election Commission to accept electronic nominations from those candidates who have filed and send them to the panchayat returning officers by 3 p.m. on April 23, 2018. The names of these candidates were ordered to be included in the list of candidates running in the 2018 Panchayat elections.
• On 3 July 2018, when the proceedings were taken up, the Court was informed by Mr P S Patwalia, learned Senior Counsel appearing on behalf of the BJP – West Bengal Unit that at the Panchayat level as many as 16,860 seats have remained uncontested out of a complete of 48,650 seats; for the Panchayat Samitis, 3,096 seats out of the 9,217 were uncontested while within the Zila Parishads 203 out of the 825 seats were uncontested. An affidavit has been submitted putting out the data in regard to uncontested seats, on behalf of the State Election Commission.
• The data submitted on the record indicates that out of a total of 58,692 seats combined for Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seats have gone uncontested. 3,096 seats out of the 16,860 seats or 36.1 per cent of the total seats for Gram Panchayats have gone uncontested. 33.5 percent of seats in Panchayat Samitis were uncontested, while 24.6 percent of seats in Zilla Parishads were uncontested.

Fact in issue

Whether there was widespread obstruction in the filing of nominations

Petitioner contention

• The directions issued by the High Court, after the last date of nominations and scrutiny, to accept nominations submitted electronically is contrary to the clear mandate of Section 46(1) of the Panchayat Elections Act
• Though this relief had been specifically sought in proceedings under Article 32 before this Court in Writ Petition (C) 302 of 2018, it had been declined;
• Because the provisions of the Panchayat Elections Act constitute a full code addressing the filing of nominations, the High Court’s orders are in violation of Article 243 K of the Constitution.
• The High Court erred in ruling that the Information Technology Act of 2000 should be considered a part of the Panchayat Elections Act of 2003.

For uncontested seats

• The State Election Commission recognized the importance of conducting a free and fair election, and after the election on 14 May 2018, it ordered a re-poll in 572 booths where issues had arisen.
• Only 1770 complaints had been received by the State Election Commission, therefore it would be wrong to assume that all 20,159 uncontested seats had been tainted.

State government on uncontested seats

• Once the process has been completed, this Court should not use its jurisdiction to interfere with the declaration of the results in uncontested seats.
• The duration of the panchayats is limited to five years under Section 7 of the West Bengal Panchayat Act 1973, after which no extension is permitted.
• If results for uncontested seats are not allowed to be declared, it will be difficult to form panchayats, which will result in a failure to allocate monies for constitutional reasons.
• A generalized presumption cannot be made in respect of each of the almost 20,000 seats in the absence of any credible accusation of obstruction in the submission of nominations. As a result of the hold on the release of results, it has been claimed that 3,170 panchayats are no longer operational.

All India Trimool congress

• There were no pleadings, no requests, and no uncontested seats were the subject of the writ petition before the Hon’ble High Court.
• If this Court intervenes in uncontested seats, the election process will be rendered null and void in the absence of the concerned parties;
• The election process cannot be stopped once it has begun; the sole option is to protest the election’s outcome by submitting an election petition.
• The duration of every panchayat is five years and no longer, according to Article 243 E. The Court is prohibited from interfering under Article 243 O. Any involvement at this point would jeopardize the constitutional process of forming the panchayats.

Respondent contention

• The High Court had been constrained to issue a directive for the acceptance of nominations in the electronic form after adequate material was presented before it suggesting that candidates had been barred from filing their nominations.
• As a result of the violent activities of the followers of the ruling party in the state, a situation had created where it was not possible to file nominations personally and consequently the instructions which were issued by the High Court sub-serve the cause of a free and fair election.

Bhartiya janata party for uncontested seats

• The entire electorate is a vicariously participating party in the election. The exercise of this Court’s jurisdiction has been requested on the grounds that the electoral process has been tainted by large-scale impediments to the submission of nomination papers by candidates.
• According to the argument, a total of 20,159 seats in West Bengal’s state legislature have gone uncontested, with the ruling party’s nominees winning a vast majority of them.
• There is contemporaneous evidence that candidates were stopped from filing their nominations as a result of obstruction and violence.

Ratio decendi

• The High Court was cognizant of the fact that the State Election Commission does not fall within the ambit of Section 6(1)(a) of the IT Act 2000. Despite having noticed the law, in the court’s view correctly, the High Court proceeded to issue a mandamus directing the State Election Commission to accept nominations in the electronic form. While the Division Bench of the state supreme court may are guided by a desire to make sure a free and fair election, the direction to just accept nominations within the election form has clearly transgressed the permissible area within which the jurisdiction under Article 226 could are exercised. The jurisdiction under Article 226 has got to be exercised in an exceedingly manner per law.
• The provisions contained within the Panchayat Elections Act and rules constitute an entire code in relation to the conduct of the election, including within the matter of filing of nominations. Neither the Panchayat Elections Act nor the foundations contemplate the filing of nominations within the electronic form. Any reform of the electoral process to allow the filing of nominations electronically would have be meted out by a legislative amendment. The Supreme Court ought to not have issued a compulsory direction of this nature within the face of the precise provisions contained within the Panchayat Elections Act and Rules.
• Furthermore, the election process had already begun. The deadline for submitting nominations had passed. The High Court’s orders fly in the face of the well-established concept of self-restraint that regulates the exercise of Article 226 authority after the electoral process begins. Furthermore, such a directive would be in violation of the Constitution’s Article 243. In light of this, the court believes the High Court made a mistake when it issued directives allowing nominations to be submitted electronically. As a result, the High Court’s decision would have to be overturned.
• The argument that the discipline imposed by the Constitution and enforced by the enabling state law on the issue must be maintained has substance. Any disagreement over the election’s validity must be resolved by the employment of a legally recognized remedy, namely an election petition. Factual conflicts can be settled on the basis of evidence during the trial of an electoral petition.
• After giving careful regard to the opposing arguments presented at the bar, the court concluded that there are various reasons why the Court should not use its jurisdiction to prevent the declaration of results for the uncontested seats. First and foremost, the Court should be aware that no specific redress was sought in the High Court in the cases of seats where there was no contest.
• Several political parties brought the case to the High Court, each of which would have been well aware of the circumstances on the ground and the necessity to construct an acceptable factual basis to use the High Court’s jurisdiction. The High Court dealt with the only matter that had been addressed, which was the request that nominations should be allowed to be lodged in electronic form, in the absence of such a factual base. There was no other argument made. The Court must also examine the fact that if the foregoing plea is accepted, election results for over 20,000 seats will be nullified in the absence of the concerned parties appearing before the Court.
• Third, once the election process has begun, it is common sense that it should not be halted in the middle of it. In a democracy, the electoral process is treated with respect. That is why, as has been the case in the past, the Court has insisted on the rule of law being observed, and that any challenge to the legality of an election must be addressed by filing an election petition as authorized by the controlling statute.
• For the Court to set aside elections for more than 20,000 seats would be to prejudge the fundamental question of whether the election was tainted by obstruction of candidates’ ability to file nominations in each of those constituencies. It is impossible to make such a broad assumption.
• In the end, whether or not this is true will be determined by the evidence presented in particular cases when such a grievance has been raised in an election petition. Approximately 1,700 complaints were lodged, and 168 election petitions were filed, according to the information provided to the Court. The court is adamant that any challenge to the election must be conducted in a legal manner.
• When a question arises over the validity of an election, Section 79(1) prescribes a 30-day period for filing an election petition. The 30-day period begins on the day the election results are announced. The pending litigation may have deterred disgruntled citizens from filing an election petition, especially after the Court issued an interim order prohibiting the State Election Commission from notifying the results of the constituencies where there was no dispute.
• While the court believed that the legitimacy of the elections should be reviewed in election petitions filed under Section 79(1), the question of whether there was widespread obstruction in the filing of nominations is a major issue that must be resolved. This is especially true because, as the court has seen, the Election Commission has responded to the dire situation by extending the deadline for filing nominations.

Judgement

• Given the gravity of the charges and the fact that these processes were still unresolved, the court believed it would be necessary to employ the power conferred by Article 142 of the Constitution to extend the 30-day deadline for submitting election petitions in uncontested seats.
• For the above reasons, the court believed that election petitions filed under Section 79(1) of the Panchayat Elections Act should include challenges to the validity of elections to uncontested seats in panchayats, panchayat samitis, and zilla parishads. The court leaves it open to anyone who feels wronged to file a complaint in the form of an election petition under the terms of the Panchayat Elections Act. The court direct that the period of 30 days for filing election petitions in respect of uncontested seats begin from the date of publication of the results in the Official Gazette, in exercise of the power conferred by Article 142.
• The court approved the appeals and set aside the impugned decision and order of the Calcutta High Court directing the acceptance of nominations in electronic form for the reasons stated above. If there are any pending applications, they are also discarded. There will be no costing order.

Conclusion

The mere fact of not allowing the filling of nomination is crucial in democracy. Democracy works with the help of both opposition and ruling party.