Calcutta HC refuses to stay by-poll in Bhabanipur; berates WB Chief Secy for acting as party spokesperson

THE Calcutta High Court Tuesday refused to stay the by-polls in West Bengal's Bhabanipur constituency from where Chief Minister Mamata Banerjee is contesting. The court, however, berated the Chief Secretary of the state for writing to the Election Commission of India (EC), stating that there would be a 'constitutional crisis' if the by-elections were not held.

"Chief Secretary is a public servant, who is to discharge his duties in terms of provisions of law, whosoever may be in power. He is not to ensure that any particular person should come in power and in the absence there would be 'constitutional crisis", a bench of Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj said.

The bench was ruling on a petition filed by lawyer Sayan Banerjee seeking to quash the EC's decision to hold by-polls in Bhabanipur.

In the recently held state assembly polls, Chief Minister Banerjee had lost the Nandigram constituency to the Bharatiya Janta Party candidate Suvendu Adhikary. However, she was elected as the All India Trinamool Congress' legislative party leader and was sworn in as the Chief Minister of the state. To continue as Chief Minister, she has to be elected to the state assembly within a period of six months, as per Article 164(4) of the Indian Constitution.

In this context, the Chief Secretary had written to the EC stating that the COVID-19 situation was fully under control and that the flood situation in the state had not affected the poll-bound assembly constituencies. In view of administrative exigencies and public interest and to avoid a vacuum in the state, he said, bye-elections for  Bhabanipur, Kolkata from where Mamata Banerjee, Chief Minister intends to contest elections, may be conducted.

Taking a grim view of the letter, the High Court observed that the information furnished by the Chief Secretary of the State to the Election Commission was contrary to the facts given that the restrictions on account of COVID-19 had been extended to September 30, 2021. Besides, the Election Commission was also misled regarding flood situation.

"It is known to all that there had been excessive rains in the State. Be that as it may, the most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be constitutional crisis in case elections to Bhabanipur Constituency is not held from where respondent No. 5 wants to contest election", the bench said.

What constitutional crisis the government could face with one person losing or winning the election, was not explained, the court pointed out.

"How did the Chief Secretary know that Banerjee was to contest election from Bhabanipur Assembly Constituency? He was not a party spokesman or a returning officer", the bench asked.

Click here to read the judgment