Calcutta High Court permits bike riding on polling day in West Bengal, says ECI can't order blanket restriction

The Calcutta High Court on Friday ruled that the Election Commission of India (ECI) cannot pass a blanket restriction on motorcycle riding in the name of free and fair elections during the West Bengal polls. [Ritankar Das v. The State of West Bengal and Others]

Justice Krishna Rao removed a prohibition ordered by the ECI on motorbike riding from 6:00 PM to 6:00 AM in West Bengal two days before the polling day and on the day of elections.

"This Court failed to appreciate why the respondent no. 3 has imposed restriction upon the riding of the motorcycle polling day-2 onwards. In the name of free and fair poll, the authorities cannot pass a blanket restriction on the motor cycle riding," the Bench said.

However, the Court agreed with certain other restrictions imposed by the electoral authorities. With certain changes, the Court permitted the following restrictions:

(a) Polling day-2 onwards: No motor bike rally shall be allowed.

(b) 12 hours before the polling day, no pillion riding on the motor cycle shall be allowed except in the case of medical emergency/ family function or other essential requirements like dropping/picking of school children etc.

(c) Polling day: Family pillion riding on motor cycle shall be allowed from 6 a.m. to 6 p.m. for voting purpose and for other essential requirement like medical emergency/ family functions etc.

(d) Exemption is given to the service providers such as Ola/ Uber/ Zomato/ Swiggy and similar other home delivery agencies and also to the office going ridders with proper identification.

The Court said that the ECI was justified in banning motorbike rallies to prevent violence ahead of the elections and on the polling date, but cannot prevent riding of motorcycles in general.

In a notification issued by the Chief Electoral Officer on April 20, the ECI effectively banned the use of motorcycles in West Bengal between 6pm and 6am two days before polling, except in cases of medical emergency or family functions. With regard to the polling day, the notification said:

"Family pillion riding on Motor Cycles shall be allowed from 06:00 AM to 68:00 PM for voting purpose and for other essential requirements like medical emergency, family function etc."

On April 21, the CEO granted an exemption for the service providers such as Ola, Uber, Zomato, Swiggy and similar home delivery agencies and also to the office going riders having proper identification.

The notification dated April 20 was challenged by Advocate Ritankar Das, who argued that the restriction on movement of motorbikes was issued without considering its impact on professionals such as advocates.

Das said that he cannot afford a taxi or private car on a daily basis and that the restrictions effectively prevent him from traveling to the High Court.

"Advocates, including the petitioner, are required to attend court during the day and thereafter remain engaged in chamber work, client conferences, drafting, and urgent filings, often extending well beyond 8:00 PM. The said restriction effectively disables them from commuting to and from the Hon'ble High Court at Calcutta by their primary mode of transport, i.e., motorbikes, thereby directly interfering with their professional obligations and access to justice."

The provision in the order to seek exemption from police was impractical, arbitrary and not feasible, the plea added. The petitioner said that the restrictions amounted to a curtailment of the fundamental right to livelihood. He also said the blanket prohibition has no rational nexus with the object sought to be achieved.

In the judgment delivered today, the Court said that there was no provision in law for imposition of restriction on motorcycle riding ahead of the polling day.

It added that while the ECI does have the superintendence powers Article 324(1) of the Constitution of India for the purpose of election, it still will have to confirm to the existing laws and rules.

The Court noted that several para military forces as well as the local police have been deputed to prevent any untoward incidents. Further, the Court said that there was already a provision for checking of the vehicles.

Thus, the Court said that it failed to understand why such a blanket restriction was imposed on bike riding. Accordingly, the Court decided to modify the restrictions imposed by the ECI on bike riding ahead of the polling day on April 29.

Senior Advocate Bikas Ranjan Bhattacharyya with Advocates Siddhartha Mandal, Soumya Dasgupta and Sattwik Majumder appeared for the petitioner.

Advocate General Kishore Datta with Advocates Swapan Banerjee, Sumita Shaw and Soumen Chatterjee appeared for the State.

Additional Solicitor General Ashok Kumar Chakraborti with Advocates Nilanjan Bhattacharjee and Guddu Singh appeared for the Union of India.

Senior Advocate DS Naidu with Advocates Jishnu Chowdhury, Anamika Pandey, Sanskriti Agarwal and Rishika Pandey appeared for the Election Commission of India.

Advocates Samim Ahammed, Arka Maiti, Ambiya Khatun, Arka Ranjan Bhattacharya, Nasirul Haque, Reshma Khatun and Huma Shakil represented an intervenor.

[Read Order]