WB Panchayat Polls| SEC Is An Independent Constitutional Body: Calcutta HC While Dismissing Plea Seeking Removal Of Election Commissioner

The Calcutta High Court has dismissed the plea seeking the removal of the Independent Election Commissioner on the ground that the State Election Commissioner (SEC) is an independent constitutional body.

The Court was dealing with a batch of two petitions filed in respect of the West Bengal Panchayat Elections.

A Division Bench comprising Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held, “First we take up for consideration one of the prayers made in the writ petition, for removal of the State Election Commissioner. Such a prayer is not maintainable for the reasons that the State Election Commissioner is an independent constitutional body which has been vested with the powers of superintendence, directions and control of the preparation of electoral rolls and the conduct of all elections to the panchayat in terms of Article 243K(1) of the Constitution.”

The Bench said that the conditions of service and the tenure of office of the State Election Commissioner are in terms of the mandate under Article 243K(2) of the Constitution read with the provisions of the West Bengal State Election Commission Act, 1994.

Senior Advocate Bikash Ranjan Bhattacharya and Advocate Shamim Ahammed appeared for the petitioner, Advocate Jishnu Saha appeared for the SEC, while Advocate General S.N. Mookherjee and Senior Advocate Kalyan Bandopadhyay appeared for the State.

In this case, since the reliefs sought in both the writ petitions were identical, they were heard together and were disposed of by the common judgment and order of the High Court. The petitioners filed the said pleas as public interest litigation praying for issuance of a writ of mandamus to declare the West Bengal Panchayat Election, 2023 as void because of non-compliance of basic principles of the Constitution and the statute to ensure free and fair elections.

The petitioners further prayed for the issuance of a direction for an independent agency to investigate the affairs of filing of nomination of candidates belonging to the ruling party in an abnormally short span of time i.e., 76000 nominations in two days including filing of nominations by persons who are not in India. It was also prayed to declare that the present SEC was incapable of conducting an election independently and to remove him from his post and be replaced by an independent person.

The High Court in the above context noted, “In terms of Article 243K(2), the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In the light of the said constitutional provisions, the prayer made by the writ petitioners to remove the State Election Commissioner is not maintainable and the same is rejected.”

The Court referred to the judgment passed by the Supreme Court in the case of State of Karnataka and Another v. All India Manufacturers Organisation AIR 2006 SC 1846 wherein the question as to whether the doctrine of res judicata as a matter of principle can be applied to the PILs was considered.

“It was held that in view of the Explanation (vi) it could not be disputed that the Section 11 of the Code of Civil Procedure applies to the public interest litigation as long as it is shown that the previous litigation was in public interest and not by way of private grievance. Further it was held in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large and as long as litigation is bonafide, the judgment in previous public interest litigation would be the judgment in rem”, said the Court with regard to the referred judgment.

The Court observed that it arises public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue that had been raised/and should have been raised at an earlier occasion by way of public interest litigation.

Accordingly, the Court dismissed the pleas.

Cause Title- Ujjwal Trivedi v. The State of West Bengal and Others

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