Panchayat Elections in West Bengal 2013

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Buddhadeb Ghosh

Panchayat Elections in WPanchayat Elections in WPanchayat Elections in WPanchayat Elections in WPanchayat Elections in West Bengalest Bengalest Bengalest Bengalest Bengal

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Institute of Social Sciences


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The Institute of Social Sciences was founded in 1985 to study contemporary social,

political and economic issues and problems in an inter-disciplinary perspective and

to make available its findings and recommendations to government bodies, social

scientists, policy makers, peoples and workers organizations, so as to widen their

options for action. The evolution of an informed and action-oriented public opinion

is the primary aim of the Institute.

The research projects undertaken by the Institute cover a wide range of subjects

in the areas of local governance, womens studies, environment and contemporaryeconomic and political issues. The Institute also organizes seminars, workshops,

discussions and training programmes for the exchange of ideas and dissemination of

its research findings.

The major research thrust of the Institute is in the areas of Local Governance

(Panchayati Raj) and International Affairs.

The Institute seeks to build a community of concerned scholars and activists for

ushering in a humane and just society.

Chairman

Dr. George Mathew

Director

Dr. Ash Narain Roy


8 Nelson Mandela Road, New Delhi - 110 070Phone: 91-11-43158800, 43158801, Fax: 91-11-43158850

Email: [email protected]; www.issin.org


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Panchayat Elections in WPanchayat Elections in WPanchayat Elections in WPanchayat Elections in WPanchayat Elections in West Bengalest Bengalest Bengalest Bengalest Bengal

20132013201320132013

Buddhadeb Ghosh


8 Nelson Mandela Road, New Delhi - 110 070Phone: 91-11-43158800, 43158801, Fax: 91-11-43158850

Email: [email protected]; www.issin.org


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First Published: 2014

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About the Author

Buddhadeb Ghosh is the Senior Fellow atthe ISS. Before joining the Institute, ShriGhosh served in the State Civil Service ofWest Bengal in various capacities including astint as the Director, State Institute ofPanchayats, Kalyani. His specialization is inthe fields of local government, public

administration and institutional issues of ruraldevelopment. He has undertaken large

number of research projects on decentralization, local governmentreform, decentralized planning and civil society organizations.Some of the research projects or consultancy in which he wasinvolved on behalf of the ISS are: Accountability Mechanism ofKeralas Panchayats, Decentralization and Poverty Reduction inWest Bengal, Methodology of Gram Panchayat Level Planning ,Methodology of District Planning, Activity Mapping forPanchayats in Himachal Pradesh, Scoping Study ofDecentralization and Convergence Issues in West Bengal,Accountability and Transparency of the NGOs, Political Economyof Panchayats in West Bengal, Background papers on the Reform

of Panchayats for two national Commissions, namely, NationalCommission to Review the Working of the Constitution and theSecond Administrative Reform Commission. He has to his creditmany papers published in the journals and anthologies orpresented in the national seminars. Among the books/monographs authored by him are West Bengal PanchayatElection, 1993 - A Study in Participation (Co-author), Institute ofSocial Sciences and Concept Publishing Company, New Delhi,1996, State politics and Panchayats in India (Co-author), ManoharPublishing Company and CSH, New Delhi, 2003, Panchayati Raj- Evolution of the Concept, Institute of Social Sciences, New Delhi,1998.


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ContentsContentsContentsContentsContents

Page No

Introduction 1

Conflict between State Election Commission and 4

State Government

Judiciary Intervenes 25

Violence casts its shadow on the elections 38

Rise of Trinamul Congress: An Analysis 49

Conclusion 58

Appendix A 63

Appendix B1 70

Appendix B2 71

Appendix B3 72


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FOREWORD

The present study is the latest in the series on Panchayati Rajby the Institute of Social Sciences, which has been conductingperiodic research and analytical studies on the subject for thelast 29 years.

Elections to local self governments are the base of thedemocratic system in India. When the elections are held in a

free and fair manner, these ensure that for the next five yearsthe local governments can function democratically withconstitutional legitimacy. Therefore, elections to the panchayatsand municipalities must be held regularly and conductedaccording to the norms evolved over the years. Theconstitutional status to the panchayats ensured this. The StateElection Commissions (SECs) were set up for every state underArticles 243K and 243ZA of the Constitution for conductingelections to the panchayats and municipalities. The powers ofsuch Commissions in respect of conducting elections are no lessthan that of the Election Commission of India (ECI) in theirrespective domains.

Despite this, the state governments often trample upon the

jurisdictions of the SECs and tend to keep them as weak bodiesor show reluctance in extending cooperation to theseconstitutional institutions. The syndrome of undermining theposition of the SEC and denying its pivotal role in conductingthe local body elections by the state government was visible ina very blatant form in the West Bengals panchayat elections of2013. The conflict between the state government and aconstitutional body raised not only serious doubts about thefairness of the 2013 panchayat elections in the state, but wasalso to a great extent responsible for the breakdown of law andorder in many places during the elections.

One of the panchayat election studies the Institute conductedwas in Punjab in 2008. Prof. Partha Nath Mukherji, who

conducted the study, critically reviewed the role of State ElectionsCommissions. He observed: The paramount role of the State


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Election Commissions is of critical importance in safeguardingdemocracy. Along with the three institutional pillars of Indiandemocracy the legislature, the executive and the judiciary the Election Commission of India along with the State ElectionCommissions constitute the fourth pillar. The ElectionCommission of India is fully empowered to play its role withoutfear or favour of the party(ies) running the national government.It may be recalled that ECI before Mr. Seshan took charge asCommissioner, generally could not avoid being used as a tool ofthe government-in-power. The Election Commissions at the Statelevel are mostly in their pre-Seshan stage and have to be equallyempowered to play their legitimate roles vis--vis the Stategovernments. The State Election Commissions in both WestBengal and Punjab have yet to acquire the status of anautonomous, powerful constitutional instrument undeterred bythe power of the ruling party.

It is in this context the study on the conduct of West BengalPanchayat Elections 2013 was taken up by the Institute of SocialSciences. I thank Shri Buddhadeb Ghosh, Senior Fellow of theInstitute, for conducting the study and completing it in a shorttime. I also extend my thanks to Ms. Joya Roy for editing thereport.

I am confident that the insights which this report providesand the areas of concerns raised in understanding the process of

panchayat elections in West Bengal 2013 will be of great valuefor further research. The study will go a long way in formulatingnew guidelines for holding panchayat elections in a free, fairand non-violent manner on time in other States also.

George MathewChairman

Institute of Social Sciences17 January 2014


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PANCHAYAT ELECTIONS IN WEST BENGAL 2013

BUDDHADEB GHOSH

INTRODUCTION

West Bengals panchayats were revived in 1978 when

elections were held under a new Panchayat Act (WestBengal Panchayat Act 1973) establishing for the first time in thestate three-tier panchayat system1. The first elections under thisAct were held in May 1978. Thereafter, 6 more panchayatelections were held at regular intervals of 5 years. The 7th

panchayat general elections were held in 2008. The 8th generalelections to panchayats were due in the month of May 2013.They were finally held in July 2013.

In many ways this panchayat election was different fromthose held earlier. First, this was the first time since the early1980s that elections to the panchayats could not be held in duetime, leading to the creation of a constitutional vacuum for afew months, as the term of the elected representatives who had

been running the panchayati raj institutions since 2008 expiredin the month of June or early July and the newly electedpanchayats could not begin functioning before September 2013after completion of the elections of chairpersons.

Secondly, this was for the first time that the elections havebeen preceded and accompanied by a long drawn out conflictbetween the State Election Commission (SEC) and the Stategovernment over several issues culminating in a legal battle.The nature and the issues of this conflict including the response1 West Bengals Panchayati Raj system consists of 3,349 Gram Panchayatsat village level, 341 Panchayat Samitis at block level, 17 Zilla Parishadsin the districts. There is also a Mahakuma Parishad having the powersof a Zilla Parishad for Siliguri sub-division of Darjeeling district, as

other areas of the district are covered by the Gorkha TerritorialAdministration.


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2of the judiciary to the issues raised by the two contestants needto be recorded and analysed carefully, as they have relevancenot only for West Bengal but also for other states.

Thirdly, from the time of their re-birth in 1978, West Bengalspanchayats have grown under the strong influence of the regimeof the Left Front in the state. The outgoing panchayats were alsoelected during that regime, even though around 50% or so ofgram panchayats belonged to the non-Left parties. This was thefirst election that was being conducted under the regime of anon-Left party at the state level.

Fourthly, this is the first time that reservation quotas in thepanchayats have been raised substantially with the inclusion ofOBCs in reserved seats and raising of womens quota from one-third to 50%.

Last, but not least, this election witnessed unprecedentedincidence of violence in various forms criminal intimidation,arson, physical assault, abduction and even murder at all stagesof the elections, namely, the nomination phase, campaign phase,polling phase, counting phase and at the time of election ofchairpersons of panchayats.

In general West Bengals panchayat elections have someunique characteristics. First, elections to all the three tiers arefought here on party basis, with candidates contesting electionswith party symbols. Second, it is one of those rare states where

elections to the local bodies have been held regularly from 1978.So, much before holding of such elections had been mademandatory by the Constitution, the state on its own was holdingelections regularly.

So far only two studies have been conducted to analyseprevious panchayat elections of the state: one by the NationalInstitute of Rural Development (NIRD0 and the other by theInstitute of Social Sciences (ISS). The NIRD study2 focused onthe first elections held in 1978 and the ISS study 3 on the 4th

elections held in 1993.

2M. Shivaiah, K.B. Srivastava and A.C. Jena, Panchayati Raj Elections inWest Bengal, 1978, NIRD, Hyderabad, 1980.3Girish Kumar and Buddhadeb Ghosh, West Bengal Panchayat Elections

1993: A Study in Participation, Institute of Social Sciences and ConceptPublishing Company, New Delhi, 1996.


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3Objectives of the present study

The present study focuses on the following aspects of thepanchayat elections of West Bengal, 2013.

Conflict between the State Election Commission andthe State Government;

Judicial intervention in the holding of panchayatelections;

The scope, power and the role of the State ElectionCommission;

Violence in elections; Verdict of the voters: Analysis of election results.


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4

CONFLICT BETWEEN STATE ELECTIONCOMMISSION AND STATE GOVERNMENT

One of the most important features of the 2013 panchayatelections is, as mentioned, the long drawn-out conflictbetween the State Election Commission (SEC) and the stategovernment of West Bengal. The conflict arose over almost everymajor issue, starting with the timing of the elections. The story

of this conflict is unique in the annals of the governmentsengagement with other constitutional authorities and, therefore,deserves to be narrated in detail. In this section, we shall providethe narrative4.

When will the elections take place?

The first point of disagreement between the SEC and the stategovernment emerged over the time of holding elections. TheCommission wrote to the state government in April 2012requesting the latter to communicate its views on the tentativedate(s) of panchayat elections in a phased manner. This letterremained unanswered for three months, even though two

reminders were sent - one in late April and the other in July.Ultimately a reply came from the state government in mid-August, 2012 in which it was stated that it would like thepanchayat elections to be held sometime in December 2012. Inreply to this letter, the Commission pointed out that accordingto its own understanding it would be nearly impossible to holdelections before March 2013, because there were manypreliminary works, such as, preparation of electoral rolls,delimitation of constituencies, reservation of seats, among others,that had to be completed before poll dates were announced,

4This narrative has drawn substantially on the facts provided in thejudgment delivered by Mr Justice Biswanath Somadder of Calcutta High

Court in the case, West Bengal State Election Commission Versus Stateof West Bengal and others, WP No 315 of 2013.


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5each of which would take a minimum time period to complete.Accordingly the government was requested to reconsider itsviews regarding the time of holding elections. But thegovernment seemed to see no reason to do so and insisted thatthe elections should be completed by January 2013. Again theCommission pointed out how much time was required to delimitconstituencies, to finalise electoral rolls and to complete otherkinds of preparatory work and then showed why it was difficultto hold elections before March. The state government continuedto insist that elections should be held in January, without caringto appreciate or to contradict with strong reasons the argumentsof the Commission.

The Commissions estimate about the time period necessaryto complete pre-poll works was based on the assumption thatits action on the adoption of the electoral rolls of the Assembly/Parliamentary elections for the panchayat elections would betaken up after the on-going revision work of the same wascompleted. Since the state government was insisting upon theholding of elections in January, it requested the ElectionCommission of India (ECI) to postpone the work of revision ofelectoral rolls till the panchayat elections. Assuming that theECI would accede to its request, the SEC West Bengal informedthe state government in its letter dated 27 September 2012 thatit agreed to hold panchayat elections in four phases between 28

January and 6 February 2013. But the ECI informed the SEC on29 September that it was unable to postpone the work of revisionof electoral rolls. Accordingly, the SEC in its letter dated 1October 2012 withdrew its stand with regard to the schedule forpanchayat elections in January-February 2013, as communicatedin its earlier letter. In the same letter, the Commission suggesteda new schedule of elections in four phases starting on 4 May,2013 considering the fact that revised electoral rolls of the ECIwould not be available before 15 January 2013 after whichadoption of electoral roll for panchayats5and other preparatory

5The SEC West Bengal adopts the electoral rolls prepared by the ElectionCommission of India for Assembly/Parliament elections. In doing so,

the SEC adopts the latest roll available before issuing electoralnotifications.


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6works could be taken up. In suggesting the new schedule, theCommission also took into consideration other constraints, suchas, examinations of the Secondary and Higher Secondary Boards,which were scheduled to be held in February and March. Despitethe Commissions pleading, which was based on statutory andadministrative reasons, the state government rejected once againthe formers suggestion on the revised schedule of panchayatelections. Instead it insisted on the elections being held in oneday in the first half of February, 2013 a proposal that wastotally unpractical and also unacceptable, because the SEC wasstrongly against holding elections in one day and there wereserious administrative constraints in holding elections inFebruary.

The above narrative of what transpired between the SECand state government brings out a portrait of a state governmentthat takes a rigid stance on its own views, but refuses to givearguments to demolish the opposing point of view or to establishits own view. Regarding the timing of elections, the governmentfirst insisted on holding elections in December 2012, thereafterin January 2013. After the SEC gave a revised schedule vide its1 October letter, the state government shifted its stance againand fixed 10 February as the date of holding elections. When theCommission once again objected to holding elections in February,the government remained silent for some time. After nearly two

months interval, on 11 December 2012 the state governmentasked the Commission to hold the elections in April 2013. Thus,after toying with the idea of holding elections first in December,then in January and after that in February, the state governmentcame in line with the SEC, which had suggested end-April orearly May as suitable times for holding elections. A lot of timewas lost and relations between the Commission and thegovernment soured, only to deal with the unreasonable andunpractical demand of the state government to hold electionswithin the month of January, 2012.

The clash over the timing of the election was the first skirmishof a prolonged and bitter confrontation between the SEC andthe state government that became a constant feature of the entire

election process. Before we enter into the real hardcore issues ofthe confrontation, namely, phases of polling, deployment of


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7security forces for maintaining law and order and theCommissions control over the electoral machinery, let us exploreanother aspect of the issue of the timing of elections.

It is quite obvious that the ruling party, the TrinamulCongress (TMC), wanted to hold the elections within December2012 or January 2013. There was definitely a political reasonthat prompted the leadership of the TMC to insist on holdingelections ahead of the due time. As the account given aboveshows, the administrative and legal reasons given by the SECfor not acceding to such a suggestion had no importance to thegovernment. Even the argument that one would have to denythe right of new voters to vote in panchayat elections if the pollwas to be organised within December or January did not cutmuch ice with the ruling party. (The new voters were to beincluded in the revised electoral roll that was scheduled to befinalised in mid-January, 2013. The SEC argued for holdingelections on the basis of this revised roll, but the ruling partyhad little patience in giving consideration to such arguments).The SECs resistance to holding elections at a time consideredappropriate by the leadership of the ruling party was not takenlightly. As later events show, the state government went onignoring and humiliating the Commission at every stepthereafter.

There is another side of the episode that shows that the

present ruling party cares little about the aspect of constitutionalpropriety. Clause (1) of Article 243E of the Constitution statesthat Every Panchayat, unless sooner dissolved under any lawfor the time being in force, shallcontinue for five yearsfrom thedate appointed for its first meeting and no longer. (emphasisadded). This constitutional provision is also incorporated in clause(1) of sections 7, 96, and 141 of the West Bengal Panchayat Act,1973. They stipulate that the members of a gram panchayat(GP), panchayat samiti (PS) or a zilla parishad (ZP) respectively(other than the ex-officio members in the cases of PS and ZP)shall hold office for a period of five years from the date of thefirst meeting of the GP or PS or ZP, as the case may be, in whichchairpersons and vice-chairpersons of these bodies were elected.

Therefore, normally, once elected every elected panchayat hasthe right to remain in office for five years. In terms of this


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8provision of law, the existing members of the panchayats wereentitled to remain in office up to June in most cases or July insome other cases. Accordingly, if the elections were held inDecember or in January, then newly elected members wouldhave to wait for a period of five or six months before they couldtake office. This would have created an embarrassing situationin the villages, where the old members would be exercising thepowers of panchayats, while the newly elected members wouldremain powerless. There can be no doubt that this would havecreated unnecessary tension between two sets of electedrepresentatives. But the ruling party was not perturbed. Whatperhaps mattered to them was the logic of political expediencyand everything else was subordinate to that.

Polling in one day or in phases?

From the beginning, the SEC had attached great importance tothe issue of maintaining law and order during the entire electionprocess from the nomination stage to the stage of counting ofvotes, declaration of results, etc. The experiences of past electionsand the perception about the current law and order situationand about the nature of political rivalry obtaining in the state all had prompted the Commission to be extremely cautious inthe matter of providing adequate security to all the stakeholders

of elections. According to the Commission, one of the stepsnecessary for maintaining peace during polling was to holdelections in phases, because even with the availability of limitednumber of security forces phasing would facilitate deploymentof adequate forces during polling to keep close watch oversensitive polling booths.

In its first letter to the state government issued on 11 April2012 asking the latter to suggest tentative dates for the 8 th

panchayat elections in 2013, the Commission indicated itsintention to hold elections in phases. As mentioned earlier, thisletter of the Commission was replied to by the state governmenton 13 August 2012, after two reminders were sent. In its reply,the state government remained silent on the issue of phases.

When the Commission responded to this letter on 16 August of2012, it specifically mentioned, among other things, that it wanted


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9to hold elections in 4 phases. When the state government repliedto this letter, it again chose to remain silent about the questionof holding elections in phases. Ultimately, after further exchangeof letters, the state government wrote to the Commission on 21September, 2012 indicating therein, among other things, that theformer wanted to hold elections on 28 January, 2012, implyingthereby for the first time that the state government desired tohold the elections on a single day.

Before proceeding further with the story, it is necessary tohighlight an important aspect of the manner in which the stategovernment chose to engage with the SEC. As we proceed withthe narrative, it will be seen that the manner in which the stategovernment chose to deal with the SEC was not only irrationaland unconstitutional, but also arrogant and the entire imbrogliothat followed resulted from this method of engagement with aconstitutional body. One finds a glimpse of this in the sequenceof events just described over the issue of phasing of elections.Between April and September, both the parties were incorrespondence, apart from formal and informal meetings held

between senior officials of the state government and the ElectionCommissioner or her officers. The state government clearly knewthe views of the SEC on phasing. Even though the governmentwas opposed to the idea of holding elections in several phases,it did not enter into argument with the Commission. It completely

ignored the SEC, as if its views did not have any value. Andthen suddenly, after a lapse of about five months the governmentfixes the date of one-day polls and even while communicatingits decision on the timing of the polls it did not care to explainas to why it was rejecting the Commissions firm views onholding the polls in four phases.

Between 27 September and 5 October, there was again furtherexchange of letters, wherein the state government insisted on aone-day poll without giving justification for rejectingCommissions suggestion of a 4-day poll. In its letter dated 17December, 2012, the Commission made a small adjustment andagreed to a three-phase poll instead of a four-phase one. By

January 2013, the state government also relented and accepted

the suggestion that the election might be held in April 2013, butinsisted once again on a one-day poll. Besides, for the first time


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10they gave a reason for opting for the one-day poll. Citing arecommendation of the Director General Police (DGP), WestBengal, the government indicated that a one-day poll would beadvantageous for maintaining peace during the election process

because it would act as a deterrent to the free movement of anti-social elements from one place to another during polling. TheCommission countered this argument by emphasising the factthat violence-free elections demanded deployment of adequatesecurity forces and it was extremely difficult to mobilise suchnumber of armed forces as were required to cover all the polling

booths, if elections had to be held on one day. Besides, it waspointed out that it would be difficult to give focused attentionto smaller areas if polling took place in all the districts on thesame day.

In a letter dated 12 February 2013, the state government wasfound to be shifting from its rigid stance of holding elections ona single day and agreed to hold elections over two days - on 20and 22 April, 2013. The basis of this decision was not disclosed.No reason was given as to why it rejected the Commissionssuggestions for three-day polls and settled for two-day polls.That this decision was arbitrary in nature can be proved fromtwo facts. First, even though the state government expressedthe desire to hold elections in two days, the distribution ofdistricts for holding polls, as suggested by them, was devoid of

any kind of administrative logic. For, the state governmentdecided initially that polling of 14 districts would be held on thefirst day and that of the remaining three districts (whereincidentally Congress had a strong base and TMC hadcomparatively much lesser influence) on the second day. Thelogic of such lopsided distribution of districts for polling washard to understand. Not only this, the gap that was kept betweentwo days of polling suggested by the government was only twodays. It may be recalled that the main argument of SEC to holdelections in several phases was to ensure that the armed policeforces that would be available for holding peaceful electionscould be deployed properly for all the polling booths. Thisobjective could not be served by holding elections in 14 districts

in one day and the rest three smaller districts on another day.Besides, the gap of only two days between two fixed dates of


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11elections was too small to facilitate movement of police forcesfrom one place to another. In fact, the state government wantedto show that it was trying to accommodate the Commissionsviewpoints, but the Commission was taking a rigid stance. Inreality the state government did not budge from its originalstand and its unilateral decision to hold the elections of most ofthe districts in one day and a few districts on the other day wasnot going to serve the purpose for which SEC was insisting onelections initially in 4 phases and then in 3 phases.

In sum, the reasons for rejecting the Commissions desire toconduct polling in 3 or 4 phases in the interest of free, fair andpeaceful elections, had never been discussed by the governmentwith the Commission. When it suddenly opted for two-day polls,the logic behind it was difficult to understand by anybody.

For a month or more during February-March 2013, the SECtried to convince the state government to hold elections in atleast three phases with at least three days gap between thephases to facilitate hassle-free movement of police forces fromone area to another. The State government did not pay any heedto the pleadings of the Commission, but on 22 March 2013 issueda formal notification under section 42 of the West BengalPanchayat Election Act 2003 fixing the dates of election on 26and 30 April 2013.

Section 42 of the West Bengal Panchayat Elections Act, 2003

provides, inter alia, that the State Government shall, in consultationwith the Commission, by notification, appoint the date or dates andhour or hours of poll for any election or by-election.Similar provisionexists in Section 8 of the West Bengal State Election CommissionAct, 1994. According to the state government the wordconsultation does not mean consent and, hence, the aboveprovisions of the state laws have given it absolute power in thematter of fixation of dates of elections even, if necessary, byoverruling the views of the SEC on the same and without givingreasons for rejecting the views of the Commission. The stategovernment used this provision to issue notification fixing datesof election unilaterally knowing fully well that the Commissiondid not agree to the same. There was no attempt on the part of

the state government to reach consensus through more effectiveconsultation.


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12It was difficult for the SEC to take follow up actions for

conducting elections without contesting the notification issuedby the state government under section 42 of the PanchayatElection Act. The SEC raised objections and sought a review ofthe notification and several other matters connected to it undersection 43(2) of the Panchayat Elections Act which states, interalia, When the Commission, at any time after the issue of thenotification under section 42, is of the opinion that it is not possibleto hold election on the date or dates so notified by the State Governmentunder the said section for reasons which it considers sufficient andjusti fied, the Commission shall refer the matter to the StateGovernment. The main plank of the Commissions plea toalter the notification issued by the state government, as conveyedin its letter to the state government dated 25 March 2013, wasas follows.

It is ... beyond the comprehension of the Commissionhow the State Government decided on the number of phaseswhen the State Government is only empowered under therelevant provisions of the West Bengal PanchayatElections Act, 2003 to decide the dates and the hours of poll.This process cannot be confused with the number ofphases the elections are required to be held, as this isdecided by the State Election Commission which has

the sole responsibility for conduct of free, fair and peacefulelections. This is a prerogative of the State ElectionCommission and comes under the constitutionalmandate of superintendence, direction and control ofthe conduct of Panchayat Elections. The phasing of theelections and tagging of the districts therefore shall haveto be decided by the State Election Commission.(emphasis added).

The State Government replied to the Commissions letter byasserting that phasing of elections (was) essentially an integralpart of the process of fixing of dates of election and, as such,the state government had the prerogative to determine the phases

of the election. However, the State Government also wanted togive due regard to some of the concerns expressed by the


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13Commission and, hence, issued another order cancelling theprevious order in so far as that order referred to the schedule oftagging of districts to a particular date for the purpose of holdingelection. Under the revised schedule elections to 11 districtswould be held on one day and 6 districts on another day.

This kind of argument put forward by the state governmentabout the phasing of the polls an issue which is intimatelylinked to the larger issue of holding free and fair elections andthat too after the SEC had communicated its views in detail tothe former pushed the Commission to the wall. It invoked theplenary powers given to it under Article 243K of the Constitution.When even that did not work, the SEC had no other alternative

but to go to Court. But it should not be construed that it is onlybecause of its conflict with the state government on the phasingof elections and the unilateral decision of the state governmentto issue notification under section 42 of the Panchayat ElectionAct that the Commission went to Court. There were other issuesas well. Most important among them was the issue of deploymentof adequate security forces during elections. There was also theissue of obtaining the services of Observers. We shall try to lookat these issues of conflict in the next two sub-sections.

Deployment of security forces

From the beginning, the SEC had tried to impress upon thegovernment that it was necessary to deploy adequate policeforces, particularly central paramilitary force (CPMF), duringthe entire election process. In its letter dated 27 September 2012to the state government, the Commission stated that it hadreviewed the law and order problem that had cropped up duringthe 2008 panchayat elections and had assessed the prevailingground realities and on the basis of such exercise it had come tofirm conclusion that deployment of central paramilitary forcesin adequate numbers was absolutely essential, in addition to thestate police force, for conducting the elections in a peaceful andfair manner. In the said letter, the Commission gave an estimateof the force that would be required and the purpose for which

it would be deployed. The relevant portion of this letter isreproduced below.


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14Apart from protecting the polling stations, whichnumber around 62,000 and guarding of strong roomsand counting centres, the CPMF will also be requiredfor conducting flag marches, point patrolling and otherconfidence building measures. Their services will further

be required for area domination in the pre-poll period.In view of the above requirements, the Commission willrequire at least 800 companies of the CPMF in the 17districts going for the Panchayat polls, in phases. Theyshall be placed under the control of the Commission,and their deployment plan shall be drawn up by thisCommission in consultation with the concernedauthorities and the State Level Force Coordinator, (ifany) appointed by the Ministry of Home Affairs. Youare further requested to ensure that 300 companies ofthe CPMF are available during the nomination phasesof the elections. You are, therefore, requested to take upthe matter with the concerned authorities in the Ministryof Home Affairs and keep this Commission informedabout the developments in this regard.

The above letter of the Commission remained unansweredtill late December 2012, even though the Commission wroteanother letter to the state government on 17 December reiterating

its view that deployment of Central Paramilitary Forces inadequate numbers (was) absolutely essential in addition to theState Police Force for conducting the elections in a peaceful, freeand fair manner. Since the letters remained answered for along time, it is obvious that the state government did not careto take notice of the Commissions request for arrangingdeployment of CPMF during the electoral process. But it wasduring this period, as indicated earlier, that the state governmentwas insisting on holding elections first in the month of Decemberand then in the month of January or February. It was alsopleading for one-day poll and in support of it sent a note of theDirector General of Police to the SEC. The Commission hadpointed out in its letter dated 24 January that there were not

only many infirmities in the argument that one-day poll wouldensure peaceful election by putting a barrier upon free movement


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15of wrong-doers, it would in practice create severe constraint forensuring focused and intensive security arrangements forrelatively smaller areas.

What is more, despite the Commissions repeated requests,the state government was not coming up with a definite plan ondeployment of security forces during the elections, includingrequisitioning of CPMF. The Commission was distressed to notea kind of casual attitude of the government on the very importantissue of making police forces available during elections. In itsletter to the Commission, the state government endorsed theview of DG Police when he said that the government wouldattempt to provide armed coverage to as many premises (asdistinguished from the booth) as possible on additional availabilityof forces.The Commission rightly retorted by emphasising thatany arrangement for maintenance of law and order for such asensitive and complicated election like the Panchayat generalelections cannot and should not be based on assumptions andprobabilities but on the concrete number of forces available withthe State Government. In the same letter the Commission onceagain made it clear that it wants provision of armed securitypersonnel in eachpolling station, not only in individual premiseswithin each of which there may be many polling stations.Besides, mere security of polling station is not enough. Therewould be almost 6000 sectors which required to be manned by

security personnel. In addition, strike forces, forces for areadomination in the run up to the elections and for confidencebuilding of the voters will be required. All the District Magistrateshave in various meetings with the Commission stressed thatthey need to have sufficient security forces in place from beforethe nomination stage in order to ensure proper maintenance oflaw and order. On the basis of feedback received from the seniorofficials of state government and district officers, the Commissionfelt that the State Government did not have adequate policeforces to provide armed security for each polling station in theevent of a single day election. That was the reason why it wasadvocating phased elections as well as deployment of CPMF inaddition to the states police force.

The letter of the Commission dated 24 January in which theabove views were communicated evoked a rather arrogant reply


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16from the State Government on 12 February that reiterated itsearlier position regarding phasing and deployment of forces.On phasing, however, it made a small concession by agreeing tohold elections on two days instead of one day. But on deploymentof forces, it remained completely silent about requisitioning theCPMF from the central government and did not provide factsand figures indicating the number of armed personnel to bedeployed. Instead it went so far as to say that there would beno dearth of police, NVF, Home Guard, Civic Police Volunteersand other personnel to ensure law and order in the State. Thelast line indicates clearly that the state government was treatingthe Commissions suggestion regarding deployment of armedpersonnel, including CPMF, with utter contempt. In completedisregard to Commissions strict view that para police forceslike NVF, Home guards, civic police volunteers etc are not to bedeployed for maintaining law and order during elections, thestate government was repeating the suggestion.

Moreover, it was stated at the end of the letter that theviews conveyed through it were considered at the highest level ofthe police and civil administration, which, in the prevailing politicalenvironment of the state, might mean that these views alsorepresented the views of the chief minister. What is thesignificance of this line? Is it a way to impress upon theCommission the importance of the views conveyed through the

letter? Or was it a veiled threat to the Commission asking it notto go too far with the issues of multi-phase election or that ofengagement of CPMF in the elections?

The Commission, however, refused to be impressed oroverawed by the state governments stance. In a quick replygiven to the Government on 19 February, 2013 it stated, amongother things, that it reiterates its stand for holding the electionsin at least three phases, with law and order, to be managed bya joint strength of CPMF and State Police force right from thenomination stage. The above letter was followed by anotherletter on 26 February in which the Commission wanted to knowfrom the state government whether the State Government (had)since moved the Central Government requisitioning for the 800

Companies of CPMF as requested by the Commission.


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17Even though some more letters were exchanged between

the SEC and the Government, the latter never did furnish itsplan of deployment of security forces, or intimate the number ofregular police personnel (armed or non-armed, but excludingpersonnel like NVF, Home guard, volunteers, etc.) Thegovernment also remained silent on the question of requisitioningof CPMF. The last request in this regard was made by theCommission in its letter to the state government on 22 March,extracts from which are given below.

this Commission has not yet been provided with aconcrete report detailing the actual availability of PoliceForces in West BengalThe State Government has alsonot intimated whether arrangements have been madefor deployment of 800 Companies of Paramilitary Forcesfor the ensuing Panchayat Elections though repeatedlyrequested for such information. However, in its interfacewith the District Magistrates and District Policeauthorities on 16.03.2013, the Commission has come tofind that actual availability of State Police Forces in thedistricts is woefully inadequate for conducting the Pollseven in three phases. It may also be mentioned that theState Government has only reiterated its assurances, forproviding security forces, as necessary, subject to

availability of such forces. In these circumstances, Iwould once again request you to look into the matterand arrange for providing a detailed report on the abovematter including arrangements made for deployment ofCentral Paramilitary Forces urgently.

Obviously no detailed report as sought by the Commissioncame from the government and all the points raised above hadto be settled ultimately, as we shall see later, by the SupremeCourt of India.

Dispute over placing the services of observers

Under Section 134 of the West Bengal Panchayat Election Act,the state government is obliged to provide the services of its


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18officers for appointment as Observers by the Commission. TheObservers are supposed to act as the eyes and ears of theCommission throughout the electoral process from the stage ofnomination to the stage of counting. The Commission hadrequisitioned the services of 400 officers of certain seniority to

be appointed as observers. A list of 266 officers was sent by thestate government, but the balance names of 134 officers nevercame either before the notification under section 42 fixing thedates of poll was issued by the state government or eventhereafter till the end of March. The State government knewvery well that that nomination process would start soon afterthe order under section 42 was issued and observers had a dutyto observe the nomination process. Yet it did not care to send allthe names of observers as per the Commissions request. This isanother glaring instance of shabby treatment extended to theCommission by the state government.

The State Election Commission goes to the Court

The chronicle of the dispute between the government and theSEC as recorded in the foregoing sub-sections reveals clearly thewhimsical and casual manner in which the present regime ofWest Bengal engaged with a constitutional authority. Clearlythe state government was not cooperating with the SEC in the

matter of holding elections in the manner desired by the SEC.From the beginning the SEC had been insisting on threeprerequisites for holding elections in a free and fair manner: toconduct the election in three or more phases, to deployparamilitary forces of the central government along with thestates own police force and to provide the services of about 400officers of certain seniority as observers. The state governmentfailed to comply with all of these requirements. Several letterswritten to the state government from time to time on such issueseither remained unanswered or were answered cursorily. Onthe matter of dates of elections, it stuck to its old decision ofholding the same firstly on a single day and secondly on twodays. On deployment of paramilitary forces and other matters

of security arrangement from the time of submission ofnomination to the declaration of results as demanded by the


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19SEC, the state government refused to requisition centralparamilitary forces and chose not to enter into any discussionwith the SEC as regards details of security arrangements duringthe electoral process, implying thereby that law and order wasthe responsibility of the state government and it was notnecessary for the Commission to bother about it. Besides, thestate government did not send the names of an adequate numberof officers to be appointed as election observers in due time tothe SEC.

When consultation with the Commission on several issuesas indicated above remained inconclusive, the state governmentsuddenly announced the dates of elections (April 26 and 30)arbitrarily in a notification issued under section 42 of thePanchayat Election Act. As the foregoing paragraphs show, theCommission tried to convince the government with strongarguments on all the contentious issues like multi-phase election,deployment of forces, including deployment of CPMF,appointment of observers in right time, etc. Having failed tomake its points understood by the state government, the SECmoved the High Court of Kolkata on 1 April 2013. There werefour major points in SECs prayer before the Court.

First, the announcement of dates of election throughnotification under section 42 of the West Bengal PanchayatElection Act was done unilaterally and arbitrarily by the state

government without proper consultation with the Commissionand, as such, that notification should be withdrawn. Besides,the Commission has plenary powers under Article 243K (1) ofthe Constitution to determine the number of phases in whichelections are to be held and to determine the specific phases onwhich particular districts or constituencies of certain districtswould go to the polls. Since Section 42 of the Panchayat ElectionAct, 2003 and Section 8 of the West Bengal SEC Act stand in theway of exercising such powers by the Commission in the eventof difference of opinion between the two, the provisionscontained in these sections should be declared unconstitutional.

Second, the central paramilitary forces were needed for areadomination, patrolling, guarding of sensitive areas, poll booths

and poll premises to instil confidence among the people andfear in the minds of miscreants. Hence the state government


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20should be given direction to provide for the same to enable theCommission to conduct panchayat polls in a free and fair manner.

Third, directions should be given to the state government toprovide the services of the required number of such categoriesof officers as are needed by the Commission for appointment aspoll observers.

Lastly, directions should be given to the state governmentto provide necessary funds to the Commission in order to enableit to conduct elections. It was pointed out by the Commissionthat out of a sum of Rupees 200 crores demanded by theCommission, a sum of only Rupees 100 had been provided to it.

Apparent and not-so-apparent causes of the dispute

The dispute between the SEC and the Government of WestBengal, as described in the present study, is somewhat differentin nature than similar disputes elsewhere. It was not aboutreservation or delimitation of constituencies, preparation ofelectoral rolls, holding of elections after the expiry of the termof the existing panchayats, etc. On the part of the stategovernment, it was really about challenging the pivotal role ofSEC in conducting panchayat elections. On the part of the SECit was about discharging its constitutional duty to hold electionsin a free, fair and peaceful manner and to use, if necessary, its

constitutional authority in order to discharge its constitutionalduty.In West Bengal, the political parties, as mentioned earlier,

are allowed to participate in panchayat elections with theirrespective party symbols in all the three tiers. Though a local

body election, it generates sufficient political heat, as panchayatelection results are considered to be indicators of the prospectsof the respective political parties in the Assembly orparliamentary elections that might be held in future. Accordingly,this election was of crucial importance to all the political parties,

but the stake of TMC was much more, since it was eager toprove its political supremacy in the countryside before theimpending parliamentary elections. It was therefore not very

surprising, given the style of functioning of the party that it


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21would like to ensure that the SEC conducts elections in a mannerthat suits its interest.

The dispute arose when the SEC refused to oblige the rulingparty and tried to discharge the constitutional mandate of holdingelections in a free and fair manner. The government, as has

been noted, refused to appreciate the plenary powers given bythe Constitution to the Commission under Article 243K in respectof conduct of panchayat elections. This was evident from theway in which the state government interpreted Section 42 of thestates Panchayast Election Act, the manner in which it turneddown the Commissions request to deploy central paramilitaryforces and the casual nature of responses it made to theCommissions request for providing various kinds of support,such as staff and funds. By taking advantage of some doubtfulprovisions of the states Panchayat Election Act, the stategovernment tried to force the Commission to come to terms.The State Election Commissioner refused to oblige the stategovernment at the expense of her constitutional duty andresponsibility. With her back to the wall, the Commissionerdecided to go to the Court.

Control over Election Machinery: An Area of Conflict thatRemained Unresolved

On 22nd

May 2013, the SEC had issued an order stipulating thatthe officials appointed in the statutory positions for conductingpanchayat elections, such as District Panchayat Election Officer,Returning Officers, Presiding officers, polling officers and otherofficials including the Police officers appointed for the conductof panchayat elections should come under the control anddiscipline of the SEC during the entire process of elections

beginning from the dates of notifications calling for elections tothe dates of declaration of results. A copy of this order may beseen at Appendix B1.

The above order of the Commission was issued followingthe model laid down in Section 28A of the Representation ofPeoples Act, 1951, which is reproduced in the following box.


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22

28A. Returning officer, presiding officer, etc., deemedto be on deputation to Election Commission. Thereturning officer, assistant returning officer, presidingofficer, polling officer, and any other officer appointedunder this Part, and any police officer designated forthe time being by the State Government, for the conductof any election shall be deemed to be on deputation tothe Election Commission for the period commencing onand from the date of the notification calling for suchelection and ending with the date of declaration of theresults of such election and accordingly, such officers

shall, during that period, be subject to the control,superintendence and discipline of the ElectionCommission.

Unfortunately such provision does not exist in the WestBengal Panchayat Election Act. Hence while issuing the order,the Commission invoked the plenary powers given to it underArticle 243K (1) of the Constitution read with the provision ofsection 4(1), of the West Bengal State Election Commission Act,1994, which is a verbatim repetition of the constitutionalprovisions. Very soon a reply came from the Chief Secretary ofthe Government of West Bengal. This letter of the Chief Secretaryis reproduced in Appendix B2. It states first that no such order

has been passed in previous panchayat elections by any StateElection Commission since its inception. It also states that theSEC has no legal power to issue such order. Accordingly theconcerned officials of the state government are asked not tofollow the Commissions order and the Commission wasrequested to rescind the order.

This letter of the Chief Secretary is yet another instance ofarbitrariness and arrogance on the part of the state governmentin its engagement with the SEC. Before taking unilateral decisionto ask the state government officials not to follow the concernedorder of the SEC, the state government should have been carefulabout the scope of the plenary powers of the Commission.

In Mohinder Singh Gill Vs the Chief Election Commissioner(AIR 1978 SC 851), the Supreme Court observed as follows:


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23(a) The Constitution contemplates a free and fairelection and vests comprehensive responsibilities ofsuperintendence, direction and control of the conduct ofelections in the Election Commission. This responsibilitymay cover powers, duties and functions of many sorts,administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenarycharacter in the exercise thereof. Firstly, when Parliamentor any State Legislature has made valid law relating toor in connection with elections, the Commission, shallact in conformity with, not in violation of, suchprovisions but where such law is silent Article 324 is areservoir of power to act for the avowed purpose of, notdivorced from, pushing forward a free and fair electionwith expedition. (emphasis added).

It is clear from the above judgement that the powers andobligations of the Election Commissions (including State ElectionCommissions) to ensure proper election which is free and fair,and to maintain a proper atmosphere conducive to such anelection, are derived from the Constitution of India (Article 324(1)in the case of Election Commission of India and Article 243K (1)in the case of SEC). Limitation on such power may be laid if

there is a valid law in connection with election. But where thelaw is silent on some point, the Commission can draw from itsplenary power given by the Constitution for the purpose ofpushing forward a free and fair election with expedition.

In the instant case the Panchayat Election Act, unlike theRepresentation of Peoples Act (RP Act), is silenton the point ofcontrol over the staff of the election machinery. Hence the SECwas perfectly within its power to issue an order in line withsection 28A of the RP Act by invoking its powers under Article243K of the Constitution, which was also endorsed by Section4(1) of the West Bengal Election Commission Act. The ChiefSecretarys assertion that the Commissions order was unlawfulwas in violation of the position of law as enunciated in the

aforesaid judgement of the Supreme Court.


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24Probably because some of the points already raised by the

SEC in the Court still remained unresolved, this particular pointof dispute was not taken to the Court for adjudication. But in aletter written by its Secretary (Appendix B3), the Commissionpointed out that it was not going to rescind the order as requested

by the Chief Secretary, as it had competence to issue such order.Thus the order of the Commission remained, but it was not

obeyed by the persons for whom it was meant. This is one moreinstance of the conscious and consistent strategy adopted by thestate government to keep the Election Commission as a weak

body incapable of exercising effective control over the electionprocess.


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25

JUDICIARY INTERVENES

West Bengals panchayat elections of 2013 was one of thoserare occasions when the judiciary acted not only as judgefor settling a dispute and interpreting law and constitution, butalso acted or was forced to act as an umpire and ultimately asexecutive, since two constitutional authorities could not workin unison to discharge a constitutional task, namely, the holding

of elections. The background of the SECs decision to go to Courthas already been described. There were four distinct prayersagainst which specific directions and decisions of the High Courtwere sought. At the root of all the four major points of contentionthere was one fundamental constitutional issue that needed to

be decided: on whom the Constitution has conferred the fullresponsibility and authority for conducting panchayat electionsand matters relating thereto and how far such does suchauthority extend?

First stage: the single-bench of Calcutta High Court

The single-bench judge of Calcutta High Court to whom a writ

petition6

was filed by the SEC on April 1 2013, while deliveringhis judgement on 10 May 2013 after hearing the arguments of

both the parties for 12 days, came to the conclusion that the SEChad a pivotal role to play in respect of conduct of electionright from pre-nomination stage till declaration, followed bypublication of results. The judgement noted that the phraseconduct of elections and the role of SEC in conduct of electionsfor panchayats have their genesis in Article 243K of theConstitution. It was also observed that the role of SEC in theconduct of panchayat elections as also in preparation of electoralrolls, as envisaged in the Constitution, has also been incorporated

6West Bengal State Election Commission Versus State of West Bengal

and others, WP No 315 of 2013, in the bench of Mr Justice BiswanathSomadder, High Court in Calcutta


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26

7 Kishansingh Tomar Vs Municipal Corporation of the city of Ahmedabad

and others, (2006) 8 Supreme Court cases 352.8The Court was referring to Article 243K and Article 324

in Section 4 of West Bengal State Election Commission Act, 1994.Since SEC West Bengal draws its power from the Constitutionand the aforesaid SEC Act, whatever restrictions are put on theCommission by the West Bengal Panchayat Election Act or otherActs in respect of conduct of elections (or preparation of electoralroll) can in no way be inconsistent with the provisions of Article243K.

In forming its views on the scope, power and the role of theSEC, the High Court also relied on certain landmark judgementsof the Supreme Court, which clarified that in the matter ofconducting panchayat elections, the SEC had a pivotal role toplay and the role of the state government in the same was toabide by the directions of the Commission in the same mannerin which it follows the Election Commission of India during theelections for Parliament and State Legislatures. The High Courtalso thought that the following observations made by theSupreme Court in Kishansingh Tomars case 7 (were) ofsignificance in the facts of the instant case.

From a reading of the said provisions8 it is clear thatthe power of the State Election Commission in respectof conduct of elections is no less than that of the ElectionCommission of India in their respective domains. Thesepowers are, of course, subject to the law made by

Parliament or by the State Legislatures,provided the samedo not encroach upon the plenary powers of the said ElectionCommissions.

The State Election Commissions are to functionindependent of the State Governments concerned in thematter of their powers of superintendence, direction andcontrol of all elections and preparation of electoral rollsfor, and the conduct of, all elections to the panchayatsand municipalities.


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27Article 243-K (3) also recognises the independent statusof the State Election Commission. It states that upon arequest made in that behalf the Governor shall makeavailable to the State Election Commission such staff asmay be necessary for the discharge of the functionsconferred on the State Election Commission by clause(1).

It is accordingly to be noted that in the matter of theconduct of elections, the Government concerned shall haveto render full assistance and cooperation to the State ElectionCommission and respect the latters assessment of the needsin order to ensure that free and fair elections are conducted.

Also, for the independent and effective functioning ofthe State Election Commission, where it feels that it isnot receiving the cooperation of the State Governmentconcerned in discharging its constitutional obligation ofholding the elections to the panchayats or municipalitieswithin the time mandated in the Constitution, it will beopen to the State Election Commission to approach theHigh Courts, in the first instance, and thereafter theSupreme Court for a writ of mandamus or such otherappropriate writ directing the State Government

concerned to provide all necessary cooperation andassistance to the State Election Commission to enablethe latter to fulfil the constitutional mandate. (emphasisadded).

The above judgement of the Supreme Court delivered in2006 clearly establishes the supremacy of SEC in the matter ofholding panchayat (and municipal) elections and shows thatSECs powers are identical with those of the Election Commissionof India (ECI) in their respective areas. It also points out that thestate governments role is to render full assistance andcooperation to the State Election Commission and respect thelatters assessment of needs in order to ensure free and fair

elections.


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28The single-bench judgement in respect of SEC West Bengals

case also referred to some other landmark cases of SupremeCourt that defined ECIs powers with regard to certain issues,implying thereby that the same principles would apply in thecase of SECs also in defining their powers on similar issues.

That the Election Commission has plenary powers, whichcannot be taken away by any law framed by the legislature,wasestablished by the opinion given by the Supreme Court in 2002on Presidential Reference under Article 143 (1) of theConstitution. The Supreme Court observed: Parliament isempowered to frame law as regards conduct of elections, butconducting elections is the sole responsibility of the ElectionCommission. As a matter of law, the plenary powers of the ElectionCommission cannot be taken away by law framed by Parliament. IfParliament makes any such law, it would be repugnant to Article324. (emphasis added).

In the same Presidential Reference, the Supreme Court hadalso observed: So far as theframing of the schedule or calendar forelection of the Legislative Assembly is concerned, the same is in theexclusive domain of the Election Commission, which is not subjectto any law framed by Parliament. (emphasis added).

The single bench judgement of the Calcutta High Court alsoreferred to the case of Election Commission of India versus the Stateof Tamil Nadu and others (1995) in which the Supreme Court

dealt with the subject of the power of the Election Commissionto assess the law and order situation and issue directions fordeployment of adequate paramilitary and security forces in theconstituencies going to the polls. The Supreme Court also gaveits views on a situation where the state government and theCommission cannot come to a consensus, because they haveirreconcilable viewpoints. On the first two issues, the SupremeCourt observed that the assessment of the Election Commissionas to the state of law and order and the nature and adequacy ofthe machinery to deal with situations so as to ensure free andfair elections must, prima facie, prevail. On the third question,the apex Court observed that there must be a mechanism toresolve the dispute, if there (were) mutually irreconcilable

viewpoints or because of limited resources, the Commissionsdirections could not be carried out. Situation of this kind, the


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29Court observed, should be resolved by mutual discussion andshould not be blown up into public confrontations.

Another case referred to in the judgement is the case ofDalitha Sangharsha Samiti in which the Supreme Court haddirected the Chief Secretary of Karnataka and all other officersof the state to comply with the directions given by the StateElection Commission, Karnataka, in the matter of holdingelections to local bodies and extend full cooperation to it.

One more important case referred to in the Calcutta HighCourt judgement is Prem Lal Patel versus the State of Uttar Pradeshin which the Allahabad High Court observed:

By means of the substitution of clause (3), in Section12BB of the U.P. Panchayat Raj Act, the StateGovernment has taken upon itself, the task of issuingnotification for the election appointing date or dates forthe general election or by-election of the Pradhan or Up-Pradhan, or members of the Gram Panchayat with theconsultation of Election Commissioner. The edict ofArticle 243K, is unambiguous and clear. All such powersare vested to the State Election Commissioner. The StateGovernment cannot enact a law, which is inconsistentwith any provisions of the Constitution much less Article243K, which encroaches upon the field which is occupied

by the State Election Commissioner.

These and other judgements on the subject clearly establishthe supremacy of the SEC in the matter of local body elections.The views expressed and directions given by the single-bench ofthe Calcutta High Court in SEC West Bengals case was basedon such constitutional position of SEC as defined under article243K and 243 ZA of the Constitution.

The judgement of the SEC West Bengal case also explainedthe rationale behind the creation of constitutional bodies withfull power of superintendence, direction and control ofpreparation of electoral rolls for and conduct of elections to thestate or central legislature and the rural and urban local bodies.

It was pointed out in the judgement that maintenance of absoluteneutrality during election process was non-negotiable in


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30democracy. This may not be ensured if the state government,which is headed by the political executives who represent onepolitical party or a coalition of multiple political parties havingmajority in the legislature, remains in charge. The sole objectwas to achieve total neutrality in respect of conduct of elections,which is possible only through (an) apolitical and neutralconstitutional body that is the Commission.

In the instant case the major issue was about the correctinterpretation of Section 42 of the West Bengal Panchayat ElectionAct, which states that The State Government shall, inconsultation with the Commission, by notification, appoint thedate or dates and hour or hours of poll for any election or by-election. According to the judgement, this section needs to beinterpreted first in the backdrop of the scheme of the entire Actand second, in respect of its compatibility with Article 243K ofthe Constitution. Citing the instances of various sections of theAct, the judgement shows that the entire scheme of the Act ofwhich section 42 is a part, highlights and emphasizes the pivotalrole of the Commission in respect of the Panchayat electionprocess. It also finds that the scheme of the Act and byimplication section 42 also, is compatible with the article 243Kof the Constitution. It has also been observed that while it is notnecessary that consultation should culminate in an agreement

between the parties, one has to find out its true scope, purport

and effect in the backdrop of its use in section 42 of thePanchayat Election Act. And the backdrop, as has been notedbefore, refers to the statutorily defined role of SEC as supremeauthority in matters relating to the conduct of elections to thelocal bodies, including preparation of electoral rolls. Accordingly,the state governments power to issue notification specifyingthe date or dates of election, the phase or phases of polling andtagging districts/areas to each individual phase for the purposeof polling cannot be absolute. It cannot issue notificationunilaterally without entering into effective and meaningfulconsultation with the Commission. During the consultationprocess as also afterwards the state government has to take intoconsideration the fact that it cannot in any way diminish the

pivotal role of the SEC in conducting panchayat elections, becausethe provisions of Article 243K of the Constitution give such role


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31to the SEC and the states Panchayat Election Act endorses thesame in its various provisions.

Considering the above, the Court gave the followingdirections on the four issues raised by the SEC in its writ petition,so that elections could be held before the terms of the sittingpanchayat members expired in June/ July 2013.

The Panchayat election shall be held in three phases.District-wise grouping and actual dates shall, however,

be communicated by the Commission to the StateGovernment

The Commission, while intimating the State Governmentthe three dates of election and district-wise grouping,shall also provide a revised time-table, which will ensureholding of Panchayat elections before the present termsof the elected bodies expire.

So far as security personnel are concerned, the shortfall (as stated in) the writ petition, is required to be fullycompensated by the State Government by bringing inCentral Armed Police Forces (CAPFs) as well as securitypersonnel from other States to the satisfaction of theCommission. The State should ensure that adequate armedpolice personnel are available for deployment to thesatisfaction of the Commission,from the stage of nomination

itself. The exact detail should be made known to theCommission (emphasis added). The State shall provide the balance names of Observers,

as per Commissions request

It will be seen from the judgment that the Court tried toachieve twin objectives through the judgement: first, to establishthe supremacy of the office of SEC in the matter of local bodyelections, contrary to the stance taken by the state governmentin its dealings with the former, and second, to ensure that thepanchayat elections are duly held before the terms of the existingelected representatives expire. It rejected the prayer of SEC todeclare the section 42 of the states Panchayat Election Act ultra

vires, but observed that the consultative process before issuingthe order under that section was mandatory, consultation had


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32to be effective and meaningful and while taking a decision forissuing notification under section 42, the state government shouldnot lose sight of the fact that the SEC had a pivotal role to playin fixing the dates and determining phasing of polling also, asalso in other matters concerning the conduct of panchayatelections.This is another way of saying that while exercising itspowers under section 42 of the Panchayat Election Act, the stategovernment should preferably try to achieve a consensus and,in any case, should not override the suggestion of the SEC unlessit appeared to be arbitrary and without any reason.

Second Stage: Division bench of Calcutta High Court

The judgement of the single bench was delivered on 10 May2013. On 12 May, the state government filed an appeal againstthe judgement before the Division bench of the High Courtconsisting of Chief Justice and another judge. Strange thingshappened in this Court that baffled not only the Commission

but also independent observers.Without providing the opportunity to the parties to state

their cases fully, the Court suddenly issued an order on 14 May2013 just two days after the filing of the appeal petition. Thisorder had serious infirmities and instead of bringing clarity, itadded more confusion to the imbroglio over the conduct of

panchayat elections.Firstly, the order claimed that the same was being issuedwith the consent of both the parties. Such claim of the Courtwas vehemently refuted by the Commissions advocate who fileda revision petition to the Court to drop the word consent fromits order on the ground that no such consent was given by himnor was he instructed to do so by his client, namely the SEC.Ultimately the Court had to concede the point raised on behalfof the SEC. This cleared the way for the Commission to movethe Supreme Court for a verdict on the unresolved constitutionalissues.

Secondly, it was very difficult to understand the logic of theorder. It was issued in the context of the appeal filed by the state

against the verdict of the single bench. The appeal Court didnot opt for going into the merits of the case, that is, the verdict


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33of the single bench, and the issues (dealt with in the single-

bench judgement) were kept open to be agitated in appropriateproceedings. This means that the division bench neither set asidethe judgement of the single bench nor upheld the same or gaveany indication as to whether it would take up points raised inthe appeal petition for consideration later. This created a lot ofconfusion in respect of some important legal issues raised by theSEC in the matter of conducting panchayat elections.

What the division bench did was to issue an order, so thatelections could be held without further delay. The orders gavefollowing instructions to the SEC and the state government ontwo of the most contentious issues.

The polls will be held in three phases. The StateGovernment will fix the dates in consultation with SEC.Elections are to be completed before 15 July 2013. (Thisended the resistance of the state government to the SECsproposal to hold election in phases, the minimum being3 phases.)

With respect to the deployment of armed policepersonnel and other polling personnel in the polling

booths, the Court gave specific instruct ions afterclassifying areas into different categories, such as, highlysensitive areas, sensitive areas, less sensitive areas

and normal areas. With regard to other arrangementson deployment of forces, the Court ordered that thenorms of 2008 (would) be followed.

The order was not at all satisfactory for the SEC, as thedefinitive pronouncement of the single-bench judgementestablishing the supremacy of the Commission in the matter ofconducting local body elections was neither endorsed nor rejected

by the division bench. The instructions on security arrangementswere an improvement over what the state government was bentupon doing, but it was far from the kind of arrangement thatthe SEC had envisaged. Vagueness about requisitioning thecentral police forces or police forces from outside the state was

particularly worrisome.


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34Despite this, the SEC went ahead with preparation of

elections and issued its statutory notification on 27 May 2013,after the state government had issued a fresh notification undersection 42 of the Panchayat Election Act on 17 May announcingthe dates of elections on 2, 6 and 9 July after consultation withthe SEC. Thus the long-awaited electoral process got started.

Fresh trouble begins

Immediately after the state government issued its notificationfixing the dates of the elections in different districts, all theopposition parties, including Congress, BJP and the Left, startedcomplaining about lack of security of their candidates andworkers, because of the terror created by the ruling party activistsresorting to hooliganism, criminal intimidation, physical assault,arson, etc. The complaints started intensifying after the dates ofsubmission of nominations and withdrawal and scrutiny ofnomination papers were announced by the SEC in its notificationdated 27 May, 2013.

SECs complaints against the violation of Court order

Anticipating that maintenance of a peaceful atmosphere duringthe entire period of the election process would be a challenging

task, the SEC had been insisting on a definite plan and policy onthe deployment of security personnel for the entire electionperiod from the nomination stage to the counting stage. Thedivision bench had given certain specific directions to the stategovernment on this. The SEC noticed that even on the face ofthe Courts directives, the state government was going its ownway and was not caring to let the Commission know what theyreally wanted to do. The Commissions queries in this regardevoked only vague answers from the state government.

From early June 2013 to the closing part of June, the SEChad been knocking on the doors of the High Court with a prayerfor the Courts intervention in ensuring that the state governmentactually deployed security forces as per directives given by the

Court itself. Till 24 June, when only a week was left before thefirst date of election, the SEC could not even know the size of


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35forces available with the state, how many police forces wereproposed to be brought from the central government or othersources and what concrete arrangements were being made to

bring additional forces from outside the state.In the meanwhile, the nomination phase was over with large

number of opposition candidates failing to submit nominationpapers. The campaign phase that followed was full withcomplaints being heard from all the opposition candidates aboutcomplete absence of a social and political environment conducivefor free and fair polls. The SEC was a silent spectator to thesecomplaints. It wanted to alter the situation through judicialinterventions, but various orders issued or observations made

by the division bench between the period 3 June and 24 Junewould show that nothing could motivate the state governmentto take actions as per demands made by the SEC.

On June 3, when the Division bench was considering theSECs petition complaining that necessary steps were yet to betaken to ensure deployment of adequate security forces for thepurpose of filing nominations and confidence building, theAdvocate General informed that the state (was) going to provideadequate security including the police coverage and adequatearmed protection for the purpose of (filing) nomination (papers).The Court was apparently satisfied with this reply anddischarged its responsibility by simply asking the state

government once again to provide for adequate police protectionand armed police coverage to the candidates, so that nobody(was) deprived of filing nomination by force. In the hearing of4 June also, the Advocate General claimed that the stategovernment was complying with the Courts order in its letterand spirit. It was also assured that the state was going to complywith the suggestion of SEC on requirement of forces as conveyedin its letter dated 22.5.2013.

All the assurances given in the court later proved to be paperassurances and no concrete step was taken by the stategovernment to deploy adequate forces. The counsels of the stategovernment seemed to be hiding the state governments realintention not to deploy forces according to the instructions of

the division bench. Even in the course of another hearing on 19June (that is only 12 days before the commencement of polling),


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36the state government announced in a casual manner that it hadwritten to the central government for making the requisite forcesavailable. In the hearing on 24 June, the advocate appearing on

behalf of the central government could not assure whether suchforces would be available from the central government. Hardlyseven or eight days were left before the first phase of the electionswas due to commence, but it was not clear to the Commissionwhether forces would be deployed as per the directions given

by the Division Bench in its 14 May order. In other words, thestate government seemed to have little concern for implementingthe Court order in respect of deployment of security forces. TheHigh Court also seemed to have failed to take such effectivesteps as were necessary to ensure that its own orders wereimplemented.

Final Stage: The Supreme Court

Probably after realising that effective orders enforcing the stategovernment to deploy adequate forces might not be availablefrom the Calcutta High Court, the Commission filed a specialleave petition in the Supreme Court on 26 June, 2013. TheSupreme Court acted with great alacrity and passed an order on28 June after hearing all the parties. The order was bindingupon the SEC, state government and the central government.

The substantive part of the order was as follows:

Elections would not be held as per the previous scheduleof three-phase elections between 2nd July and 9th July.The apex Court ordered that elections would be held infive phases on 11, 15, 19, 22 and 25 July, 2013. Districtswhere elections would take place on each of these dateswere also specified by the Court. The processes alreadycompleted as per earlier notifications, such as,nomination, scrutiny of nomination, printing of ballotpapers, etc. would remain undisturbed.

After ascertaining from the Commission the number offorces required on the election days, the Supreme Court

directed how deployment of forces was to be done fordifferent phases of the elections and what would be the


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37individual responsibility of the state and centralgovernment for deploying such number of forces asdetermined by the Court for different phases.

Thus, at last, the SEC got what it wanted, namely, electionsin five phases and deployment of adequate number of centralpolice forces. It required the Supreme Courts intervention toget this settled. Even the Division Bench of the High Court failedto ensure that its own orders on deployment of forces wereenforced by the state government. By incorporating all thesuggestions of the Commission to hold elections in five phasesand arranging such number of security forces as was considerednecessary by it, the Supreme Court once again conveyed themessage that constitutionally the Commission was supreme inall matters relating to conduct of elections. What was the responseof the State Government to this order of the Supreme Court?Even though the state government had resisted, tooth and nail,the deployment of central forces from the very beginning andshowed extreme callousness in requisitioning such forces fromthe central government, they did not raise any objection in theSupreme Court and agreed to issue fresh notificationrescheduling the dates of election and deployment of forces asindicated by the Court. What happened in reality was a differentstory to which we shall now turn.


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38

VIOLENCE CASTS ITS SHADOW ON THEELECTIONS

The Commission fought a long-lasting legal battle to ensure,among other things, deployment of adequate forcesincluding central government paramilitary forces during theentire election process. As noted, it failed to ensure deploymentof adequate forces during the nomination and campaign phases.

A few days before the commencement of polling, the Commissioncould obtain a favourable order from the Supreme Court andthe central paramilitary forces along with the state police forcesin adequate numbers were made available for maintaining lawand order during the polling phase. But the law and ordersituation failed to improve. One of the reasons for violence duringthe polling phase ( 11 July to 25 July, 2013) is that the centralparamilitary forces that were available to the state administrationwere not properly utilised. Violence in various forms that hadstarted at the time of the nomination process continued unabatedup to the polling and counting phases, and even thereafter.

As mentioned in Section II, the division bench of the HighCourt directed that elections were to be held in three phases in

the months of June and July and in any event before 15th July,2013. Accordingly fresh notification was issued on 17 May 2013

by the State government under Section 42 of the PanchayatElection Act, 2003 for holding elections to all the three tiers ofpanchayats in three phases on the 2nd, 6th and 9th July, 2013 inthe following manner.Phase 1: 2nd July, 9 distric

Documents

Panchayat Elections in West Bengal 2013