[Contai Municipality] Elections can be challenged only through election petition; Calcutta HC cannot pass orders in PIL: Supreme Court

The Supreme Court on Monday stayed the order passed by Calcutta High Court directing the West Bengal State Election Commission to send the CCTV footage of Contai Municipal Election for forensic audit to Central Forensic Science Laboratory (CFSL) [ West Bengal State Election Commission and Anr. v. Soumendu Adhikari and ors. ]

. A bench of Justices DY Chandrachud and Surya Kant said that such an order which amounts to verifying the sanctity and correctness of the election results, can be passed only in an election petition and not in a public interest litigation petition.

" Once results are declared, this becomes an election petition without actually an election petition. Booth capturing etc are grounds for a challenge in the election petition, not under this jurisdiction Mr Patwalia [counsel for the Respondent] . The High Court cannot collect the evidence in PIL," the bench remarked.

The Court was hearing an appeal filed by the West Bengal State Election Commission against an order of the Calcutta High Court passed on April 26 , which directed a forensic audit of the CCTV footage from the Contai Municipal elections on allegations that the polling saw incidents of violence and malpractices.

The High Court bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had found that in spite of its efforts, a free and fair elections were not held to the Contai Municipality in south Bengal.

While the Division Bench acknowledged that the election of a municipality could not be called in question except by way of an election petition, at this stage the bench was only attempting to ascertain if the assurance of free and fair elections previously given by the State Election Commission had been fulfilled.

Therefore, the State Election Commission was directed to send the CCTV footage of Contai Municipal Election for forensic audit to the Central Forensic Science Laboratory (CFSL) within 10 days.

The High Court had also stated that such a direction would not amount to interference with the election process but would, in fact, further the object of the State Election Commission to hold free and fair elections.

This led to the present appeal before the top court.

. Senior Advocate Rakesh Dwivedi appearing for the appellant, argued before the Supreme Court that such an order was unprecedented because the High Court cannot order collection of evidence in a PIL without any election petition on record.

" The court must come to the prima facie view that the CCTV was tampered with? Why forensic audit? The court has not recorded any findings. There is no election petition, " submitted Dwivedi.

. In reply, Senior Advocate PS Patwalia appearing for the respondent Soumendu Adhikari, submitted that the order must not be viewed in isolation since it was a culmination of certain incidents which happened in West Bengal.

. The bench questioned the respondent about how he could file a PIL in relation to violation of electoral practices after the elections are conducted and the results are announced.

" If you allege that the election was not fair and free, then can you go under Article 226 of the high Court. Are you candidate? ", the bench enquired.

Patwalia replied that the respondent is neither a candidate nor any candidate has filed any election petition before the Court.

Justice Chandrachud then commented that due process of law must be followed and correct course of action is to file an election petition.

. Such interference by the High Courts will set a dangerous precedent as someone might challenge the elections of Lok Sabha or challenge the usage of EVMs in a particular election by filing a PIL, the bench cautioned.

India's democracy rests on faith in electoral process and courts should not interfere in everything as it will set a dangerous precedent for future, the Court observed.

. On the High Court's direction to the CFSL to submit a report to the Court in sealed cover, the Supreme Court said that the 'sealed cover business' is dubious.

"The sealed cover business is also very dubious. After the elections are conducted, then moving to High Court under Article 226 is a dangerous precedent. We are not just concerned with Contai, but about large scale effect," the bench maintained.