The Calcutta High Court on Monday deferred the hearing of a PIL on Bhabanipur by-election for a week. The case will now be heard again on next Monday.
The division bench of acting Chief Justice Rajesh Bindal, in the meantime, asked all the parties to file their affidavits.
Advocate General Kishore Dutt, appearing for the state, said, “The Election Commission has the power to take the final decision on election matters. The election process cannot be stopped unnecessarily when the polling date has already been announced. The Supreme Court has multiple guidelines in this regard.”
Countering Dutta, Bikash Ranjan Bhattacharya, appearing for the plaintiffs, said, “By-election is no longer an issue. What will be a constitutional crisis if there is no election in Bhabanipur? Why such a hurry in conducting elections in Bhabanipur? Is it the crisis of a person?”
In response to Bhattacharya, Justice Bindal asked, “Why did you file the case so late?”
Sabyasachi Chatterjee, appearing for the petitioner, said, “We filed the case as soon as the election was declared.”
Bindal then said that the case would be heard again next Monday. He also asked all the concerned parties to file the affidavits.
A public interest litigation (PIL) was filed in the Calcutta High Court questioning the jurisdiction of the Chief Secretary to request the Election Commission to hold by-election in Bhabanipur Assembly constituency, from where Chief Minister Mamata Banerjee ‘intends to contest’.
The controversy regarding the announcement of the polls in Bhabanipur arose after the poll panel in its notification mentioned that the Bhabanipur by-election is being treated as a special case because of the request from the state government.
Quoting Chief Secretary H.K. Diwedi, the poll panel said, “He (Chief Secretary) has cited that under Article 164(4) of the Constitution of India, a minister who is not a member of the Legislature of the state for a period of six consecutive months shall at the expiration of that period cease to be a minister and there will be a constitutional crisis and vacuum in the top executive posts in the government unless elections are held immediately. He has also informed that in view of the administrative exigencies and public interest and to avoid vacuum in the state, by-elections for Bhabanipur, Kolkata, from where Mamata Banerjee intends to contest, may be conducted”.
“Taking into consideration the inputs and views of the Chief Secretaries of the concerned states and respective Chief Electoral Officers, while the Commission has decided not to hold by-elections in other 31 Assembly constituencies and 3 Parliamentary constituencies and considering the constitutional exigency and special request from the state of West Bengal, it has been decided to hold by-election in Bhabanipur,” the notification added.
The petitioner, Sion Bandyopadhyay, in his PIL contested the notification and raised questions on the jurisdiction of the Chief Secretary. The petitioner asked whether the bureaucratic head of the state has the jurisdiction to request the Election Commission to conduct an election in a particular constituency because the Chief Minister of the state ‘intends to contest’ from there.
It has also been alleged that Banerjee used the Chief Secretary to hold elections in only one seat.
The PIL also raised questions on singling out a particular constituency and holding elections there. Apart from Bhabanipur, there are four Assembly constituencies — Gosaba, Khardah, Shantipur and Dinhata — where seats are lying vacant. So why Bhabanipur was treated as an exception and what kind of constitutional crisis will arise if election is not conducted in this south Kolkata constituency, the petitioner questioned.
The matter regarding bypolls in the other constituencies was quashed by the court.