On Tuesday, the Supreme Court upheld the order issued by the Calcutta High Court, which directed the West Bengal State Election Commission (WBSEC) to procure the services of central forces for all districts in West Bengal in preparation for the upcoming 2023 Panchayat Elections.

The decision was made by a vacation Bench composed of Justice BV Nagarathna and Justice Manoj Misra, who dismissed the petitions submitted by the State of West Bengal and the WBSEC. These petitions sought to challenge the directions issued by the High Court in response to a Public Interest Litigation (PIL) filed by the Leader of Opposition, Suvendhu Adhikari.

"The fact remains that the tenor of the order of the High Court is ultimately to ensure that free and fair election is conducted the entire State of West Bengal, since State is conducting election for local bodies on a single day and having regard to the volume of booths which are being set up.We find that the order of the HC does not call for any interference. SLP stands dismissed", the bench observed. 

In its meticulous observation, the bench took cognizance of the forthcoming panchayat elections, which are anticipated to be conducted across a staggering 75,000 electoral seats, complemented by the establishment of nearly 61,000 polling booths.

During the proceedings, the bench, in its verbal inquiry, sought clarification from the State Election Commission (SEC) as to the rationale behind its concern regarding the source of the forces, highlighting that the paramount objective should be the unfettered facilitation of free and fair elections.

Arguments in Court

Delving into the arguments presented in the court, Senior Advocate Siddharth Agarwal, representing the West Bengal Government, contended that the High Court erred in issuing a sweeping directive mandating the deployment of central forces in all districts. Agarwal emphasized that such a directive assumes that all areas are inherently sensitive and implies that the State police force lacks the competence to manage the situation. He further drew attention to the scheduled polling date of July 8, underscoring that the High Court, albeit within 48 hours, directed the immediate deployment of central forces.

In response to Agarwal's contentions, Justice Nagarathna astutely pointed out that the State, in the past, had indeed sought additional forces from other states, thus inadvertently acknowledging the inadequacy of its own forces. The judge further underscored that the High Court's directive explicitly stated that the financial burden of the deployment rests upon the Center, reaffirming its significance in the proceedings.

"Holding elections cannot be a license for violence and HC has seen earlier instances of violence... elections cannot be accompanied by violence.. if persons are not able to file their nominations and if they are finished off while they are going to file it then, where is the free and fair election?", Justice Nagarathna asked.

Advancing her submissions on behalf of the West Bengal State Election Commission (WBSEC), Senior Advocate Meenakshi Arora posited that the responsibility of evaluating the sensitivity of the poll booths squarely rests with the commission. Arora emphasized that the Public Interest Litigation (PIL) in question was expeditiously filed in the High Court on the 9th of June, a mere day after the formal notification of the polls, without affording the SEC an opportunity to undertake necessary procedural measures. It is noteworthy that the Commission had previously corresponded with the State authorities regarding the implementation of security measures in relation to the elections.

"Where was the need for the petition to be filed on the 9th of June itself on which orders are passed on the 13th?", she asked.

"Today, I am aggrieved by 2 directions. HC first of all says EC will requisition the deployment of forces. That is to be done by State. Commission can only requisition the State. The second direction of the High Court which is unworkable is that to have Central forces for all districts. The forces deployment has to be done at the booths. It cannot be for the whole of the district", she said.

Elaborating on the matter, Senior Advocate Meenakshi Arora asserted that the Election Commission (EC) exercises its authority to request the deployment of forces from the State subsequent to a comprehensive evaluation of the sensitivity factors surrounding the electoral process. Arora specifically highlighted that a preliminary assessment of the situation has already identified 189 poll booths as sensitive. In support of her argument, she made reference to a significant precedent set by the Supreme Court in 2018, wherein it directed the concerned parties to approach the Election Commission as the primary authority for seeking additional security measures. This judicial directive underscores the paramount role of the Election Commission in matters pertaining to the allocation of security resources in electoral proceedings.

"Having done the assessment action, we will have the full requisition for forces. It will be for the State to decide from where to requisition the forces. We only have to request the State. And the direction to deploy the forces for the whole districts is not feasible", Arora stated. 

The honorable bench, in a quest for clarification, posed an inquiry as to why the State Election Commission (SEC) finds itself aggrieved by the order in question. The court emphasized that the order, at its core, seeks to enhance and fortify the security measures. It highlighted the fact that the primary purpose of the order is to augment the level of security to ensure the integrity and fairness of the electoral process. Therefore, the bench sought an explanation from the SEC regarding its concerns and reservations in relation to an order that essentially aims to bolster the security apparatus.

"Why are you aggrieved with the order? Why are you concerned with from where the forces come?Whether the forces come from the State or Centre or neighbouring states, should you be concerned?", Justice Nagarathna asked.

"You can be rest assured with this kind of the order. Having regard to the past history of the State and what is happening in the ground, the High Court entertained the matter. The directions are in the aid of the SEC and you cannot have any grievance", Justice Nagarathna added.

Senior Advocate Devadatt Kamat, who also represented the Commission, asserted that the High Court had issued critical remarks against the State Election Commission (SEC) as if it had failed to fulfill its duty. In response, Justice Nagarathna acknowledged that the Commission retains the right to request the removal of those observations at a later stage, allowing for the preservation of that prerogative.

The State's counsel, Agarwal, contended that the directions issued by the High Court were done so hastily, even before the SEC had completed its preliminary assessment. He expressed concerns over the presence of multiple authorities, which he argued could lead to confusion and disorder. Additionally, Agarwal cited a past incident involving CRPF officers opening fire at individuals queuing, further highlighting the potential risks associated with such circumstances.

"It is not the adequacy of forces which is being commented upon by the HC. It is the source of the forces which is being commented upon, that too without waiting for my response and getting by inputs. The Central Forces have been put on a pedestal", Agarwal said. The High Court's order will result in a situation that the entire districts of the West Bengal will be under the control of central paramilitary forces, he added.

Senior Advocate Harish Salve, representing Suvendhu Adhikari, contended that the State Election Commission (SEC) had displayed partisan behavior, as evidenced by its filing of the Special Leave Petition (SLP) and its support of the State Government. Salve further highlighted the existence of reports documenting extensive violence against potential candidates, obstructing their ability to file nominations for the elections.

"The agenda is not genuine concern of deployment but the agenda is that we don’t get central forces...The State has no real grievance. They are embarrassed to say that they do not want central forces, because they would not be under their control.", Salve stated.

Senior Advocate Vivek Thankha, representing Congress MP Adhir Ranjan Chowdhary, asserted that he had also communicated with the State Election Commission (SEC) by writing a letter, requesting the deployment of central forces.

The State Election Commission (SEC) has raised objections against two orders. The first order, dated June 13, directed the SEC to submit a requisition for the deployment of Central forces in all the areas/districts that, in its opinion, have been identified as sensitive. The second order, dated June 15, mandated the deployment of forces in all districts within a span of 48 hours.

Background

A division bench of the Calcutta High Court, consisting of Chief Justice Sivagnaman and Justice Uday Kumar, issued the aforementioned order in response to a plea filed by the Leader of Opposition in West Bengal, Suvendu Adhikari. The bench observed that although a directive to identify sensitive areas and deploy forces had been issued, no substantial measures had been taken in this regard.

While the State Election Commission (SEC) argued that it might require a couple of days to identify sensitive areas based on the law and order perspective, the Court observed that further delay would only exacerbate the potential harm and fail to uphold the integrity of the election process.

Consequently, the SEC received a directive to promptly requisition the immediate deployment of central forces within 48 hours following the Court's judgment, covering all districts in West Bengal. The expenses incurred for this deployment would be borne by the central government, relieving the State of West Bengal from any financial burden.

The High Court emphasized the necessity of this direction in light of the electorate, the citizens of West Bengal, who would exercise their right to vote in the upcoming election. Additionally, the SEC was instructed to ensure that its election officers display their identity cards and be prepared to provide proof of their identity whenever requested during the election process. With these observations and directions, the writ petition was effectively disposed of by the Court.