Manas Dasgupta
NEW DELHI, Apr 15: The Supreme Court on Thursday dismissed a plea filed against the Calcutta High Court’s rejection of the petition challenging the Election Commission’s large-scale transfers of IAS and IPS officers, in West Bengal and other states, after the state elections were announced while question of law raised in the matter open.
The court declined to interfere, citing the ongoing assembly elections. A bench of CJI Surya Kant, Justices Joymalya Bagchi and Vipul M Pancholi refused to interfere with the High Court’s order. The Court, however, kept the question of law regarding the need for State concurrence open.
The Court also addressed the claim that West Bengal was being singled out, concluding that the allegation was factually incorrect after examining ECI’s nationwide data showing that the number of officers shifted in other States was much higher than the number of officers shifted in West Bengal.
The noted, “The issues raised… involve substantial questions of law. However, keeping in view the first Phase of elections in the State, we are not inclined to entertain the SLP.”
The petition, which was initially filed as a public interest litigation, was rejected by the Calcutta High Court on March 31. The Calcutta High Court had while rejecting the plea had observed that the transfer of a large number of officers —in itself — cannot be held to have been done arbitrarily or with mala fide intent. The petitioner then moved the apex court against the High Court’s decision.
The bench passed the order while hearing a plea challenging a Calcutta High Court order dated March 31. The high court had dismissed a PIL challenging the transfer of officers by the poll panel in West Bengal. Assembly elections in West Bengal will be held in two phases on April 23 and 29 and votes will be counted on May 4.
Last month, the Election Commission questioned the locus standi of the petitioner in filing a PIL challenging the transfer of several officers of the West Bengal government after the announcement of Assembly elections in the state.
The petitioner, a lawyer, claimed in the PIL that 79 officers — 63 police personnel and 16 civil servants — have been shifted by the EC since the announcement of the assembly polls on March 15. The petitioner claimed before a division bench presided by Chief Justice Sujoy Paul that the transfers, including that of the chief secretary and the home secretary, have created a vacuum in governance in the state. Senior counsel Kalyan Banerjee, representing the petitioner, claimed that the EC was acting in an arbitrary manner and bringing in officers of its choice before conducting the elections in the state.
The state government, represented by Advocate General Kishore Dutta, supported the arguments of the petitioner before the division bench, also comprising Justice Partha Sarathi Sen. Representing the EC, senior advocate DS Naidu stated that the powers of the commission were bound by law and its solemn duty is to conduct free and fair elections.
Questioning the maintainability of the petition as a public interest litigation (PIL), he submitted that the petitioner was a full-time state lawyer and thus cannot claim to be a public-spirited person in filing the PIL.
Claiming non-discrimination against West Bengal as alleged by the petitioner, Naidu maintained that many more officers were transferred during assembly elections in the states of Uttar Pradesh, Madhya Pradesh and Jharkhand.
He denied that any vacuum has been created in governance in West Bengal owing to the transfers, stating that officers may change, but the positions remain, and the process of governance continues as usual.
Petitioner Arka Kumar Nag made the Election Commission and Chief Election Commissioner Gyanesh Kumar party respondents in the matter and prayed before the court that the transfers be declared bad in law and quashed.
The petitioner’s lawyer claimed that on the one hand, the EC has ordered that the transferred officers would not be given any election-related posts till the completion of the assembly polls, while on the other hand, the commission has posted 23 such officers on election duty as observers in other states.
In a related development, the apex court in dealing with another petition observed that the voters could not be punished or “arrested” for choosing not to go to the polling booth on the election day. The CJI heading the bench said the voters were expected to exercise their right on their own accord. The decision whether to vote or not lay with the elector.
The court was hearing a petition filed by Ajay Goel seeking penal consequences or sanctions against voters who ignore the power of the ballot on election day. The Bench disposed of the petition, asking the petitioner to approach the authorities or stakeholders concerned.
The CJI took an example of a daily wager or a migrant from another State. Should she be compelled with the threat of action to miss her daily source of meagre income and travel to her native State to vote. “Should we direct their arrest? In a country governed by the rule of law and which believes in democracy, all are expected to go. If they do not go, they do not go,” Chief Justice Kant remarked. “Awareness about the right to vote, and not compulsion, is the right antidote,” the Supreme Court said.
