People Are Unable To File Their Nominations, Where Is Free And Fair Election: Asks SC While Upholding Oder For Deploying Central Forces In WB

While noting that elections were for 65000 seats and 61000 polling booths, the vacation bench of Justice B.V. Nagarathna and Justice Manoj Misra observed, “We have considered the submissions made by the rival parties, as well as given our anxious consideration to each of those submissions. At the outset, we find that the order dated June 15, 2023, and the observations preceding the said direction for the deployment of central forces for all districts of the state of West Bengal has been preceded by earlier orders passed by the High Court which we have referred to above. The fact remains, that the tenor of the order of the High Court is ultimately to ensure that there is free and fair elections conducted in the entire state of West Bengal since the State is conducting the said elections for the local bodies on a single day and having regard to the number of seats which are going to the polls and the volume of booths that are requisition and are being set up for holding the said poll, in the circumstances we find that the order of the High Court would not call for any inference in these special leave petitions. We are also not inclined to interfere with any other direction issued by the High Court in this regard. Special Leave Petition stands dismissed”.

Senior Advocate Siddharth Agarwal appeared for the State, Senior Advocates Meenakshi Arora and Devdutta Kamat appeared for the State Election Commission, Senior Advocate Harish Salve appeared for the leader of opposition in the state, Suvendu Adhikari and Senior Advocate Vivek Tankha (MP from the State of West Bengal) appeared for Congress MP Adhir Ranjan Chowdhary.

Agarwal at the outset challenged the order of the High Court by stating that the decision of whether to deploy forces or not is the sole discretion of the State government. While contending that it is not the adequacy of the forces that is being commented upon but the source of force, argued that the High Court without considering whether places are sensitive or not, deployed the forces throughout all districts of the State. He argued that it was as if the entire State of West Bengal is incompetent and inadequate.

“We have requisitioned additional forces from 5 different States, including Bihar, Jharkhand, Orissa, Tamil Nadu, and Punjab", he submitted.

“So therefore, even according to you the Police force has as of now is inadequate to meet the situation. Therefore, you have requisitioned police forces from half a dozen States. Now what the High Court has thought instead of requisitioning police force from more than half a dozen States let the central police force... See, ultimately the High Court says that the expenditure will be borne by the Centre and not the State”, Justice Nagarathna replied.

“Holding an election cannot be a license for violence, and therefore to hold a free and fair poll..., we must appreciate that you are one of the States where you have a democratic setup right upto the lower levels and grass root level elections are taking place, but at the same time, elections cannot be accompanied by violence. Persons are not able to go and file their nominations, or who have filed nominations are ultimately finished off, there are group clashes…Where is free and fair elections?”, Justice Nagarathna further commented.

The primary line of argument that Arora raised before the Court was that it is not within the jurisdiction of the State Election Commission to requisition deployment of central forces to conduct elections. She further submitted that as per the assessment plan, 189 poll booths have been recognized as sensitive, however, the Commission is aggrieved by 2 directions passed by the High Court.

Justice Nagarathna then asked, how the Commission is aggrieved by the order, as it should not concern itself with the source of forces.

"Whether you have the state forces or in addition if you have forces from the neighbouring state, you cannot have any grievance", Justice Nagarathna added.

"Today so much has been said about the election commission but has any one of them shown you a representation that is made to the election commission on the contrary...they straight away run to the court", Arora argued.

However, Salve while vehemently opposing the contention, and supporting the order of the High Court argued “It is the source and not the deployment which is the subject matter, it is the geographic width saying don’t confine them to 189 (booths) and get them from the central forces. Now one has to have faith in the elections commission despite the fact that they have so partisanly supported the State and filed this SLP...with the hope that they will rise to the occasion.”

He further highlighted the allegation that a number of candidates who come in are being bullied.

“ You are already on June 14^th, the election fever has caught on, if they do not have an assessment plan by the day, I dare say, the State is not prepared to hold the election or they are not wanting to hold a free and fair election. How can it be appreciated? This is a double-edged weapon… On June 14 they do not even have an assessment plan, when the election process is about to start, and the State says have faith in us. The assessment should have been done much before so that by the time the process start, forces have already been deployed”, he submitted.

While highlighting the State’s contention, he further argued, “This imaginary argument itself shows that the State has no real grievance, and they are embarrassed to tell the court that we don’t want Union forces because they are not in our control”.

Kamat also appearing for the election commission in another matter argued that there was no material before the High Court to come to such a conclusion.

In the present case, public interest writ petition was filed for issuance of a writ of mandamus to direct the SEC to immediately file a report marking the areas which were sensitive after considering the Election Commission of India Report earmarking sensitive areas during the 2021 Assembly Elections as well as the NHRC and a special committee report filed under directions issued in the post-poll violence case and immediately requisition and deploy Central Para-military Forces in such areas and also at the areas where the state security assessment report denoted to have an inadequate force to provide security till after the declaration of the results.

It was further prayed to direct the SEC to allow the filing of nominations by the candidates contesting in Gram Panchayat Samity and Zilla Parishad who were prevented from filing their nominations in the respective officers of the SDOs and to direct the SEC to ensure that all police personnel shall present their Government issued photo identity card along with Badge Number, tag and Aadhar Card and also other State Government Officials while discharging election related duties.

The High Court had noted, “There is also allegation that civic volunteers have been given police uniform and they have been deployed for election duty. In the order dated 13.06.2023 deployment of Civic Volunteers for election duty has been specifically prohibited. Therefore, if any attempt is made by any authority to make the said order unworkable will be liable for action under the Contempt of Courts Act.”

The division bench comprising Chief Justice T.S. Sivagnanam and Justice Uday Kumar had said, “… this Court is at a loss to understand as to why the State Election Commission is yet to identify the sensitive districts in spite of several news reports reporting violence in several areas whereby the candidates who were desirous of filing nominations were prevented from doing so. … this writ petition is disposed of by directing the State Election Commission to requisition the deployment of Central Forces for all Districts in the State of West Bengal and this direction shall be complied with by the State Election Commission within 48 hours from the date of the receipt of the server copy of this order.”

Cause Title: State of West Bengal v. Suvendu Adhikari & Ors.