India not totalitarian, government does not have blanket control over all institutions: Calcutta High Court

The government of India does not have a blanket power over every institution under the sun in India, the Calcutta High Court remarked recently while holding that employees of two district cooperative banks cannot be compelled to perform election duties [Malda District Central Cooperative Bank Employees Association vs ECI]..Justice Sabyasachi Bhattacharyya made the observation while rejecting a contention by the Election Commission of India (ECI) that the staff of the two cooperative banks could be requisitioned for poll duties. The Court found that since the two banks were not funded or controlled by the government (Central or State), their employees could not be requisitioned for such tasks. "We do not operate in a totalitarian state and, as such, it cannot be held that the Government has blanket power over any and every institution or concern or undertaking operating under the Sun within the territory of India for any purpose whatsoever, unless so stipulated specifically in the Constitution or any specific law," the judge observed in its May 10 judgment..The Court was dealing with a group of petitions filed by employees of the Malda District Central Cooperative Bank and the Mugberia Central Cooperative Bank.Associations comprising these employees had challenged the ECI's decision to requisition them to perform poll duties for the ongoing Lok Sabha elections..The Court noted that Section 159 of the Representation of the People Act enables ECI to requisition public servants to perform these duties, which would mean persons working in institutions established under the Central or State Act or controlled and funded by the Central or the State government.It further noted that Clause (1) of Article 324 of the Constitution of India vests with the ECI powers to request the Governor of a State to make available staff to help with election duties. "However ... the same does not provide anything about the nature of the employees and/or the institutions from which the employees shall be drawn," the Court noted. Further, the judge opined that no material has been produced on behalf of the ECI to show that the bank in which the petitioners were employed was a co-operative society either controlled or financed by either Central government or the State government. The Court proceeded to pointed out that these banks have been merely registered under the West Bengal Cooperative Societies Act, 2006, but were not directly funded or controlled by either the State or the Central governments."Registration merely subjects such societies to the rigours and the benefits of the statute. However, the act of establishment itself is neither by, nor under, the statute," the Court held. .Therefore, the Court concluded that the employees of these banks cannot be compelled to perform poll duties."This Court is of the view, in clear and unambiguous terms, that the Co-Operative bank for which the members of the petitioner no.1-Association work does not come within the purview of Section 159 of the RP Act and, consequentially, the employees of the said bank cannot be requisitioned or appointed within the powers exercised by the ECI either under Article 324 of the Constitution of India or under Section 159 of the RP Act for the conduct of elections," the Court ruled..The Court proceeded to order the authorities concerned to take necessary steps to ensure that the employees of these banks are not requisitioned to assist with election duties in future.All the same, the Court clarified that it would not order the withdrawal of election duties already assigned to the employees for the current election season as such a withdrawal could hamper the election process. "The above observations shall be given effect to only from the next elections. Insofar as the present ongoing election process is concerned, the requisitions/ appointments of the members of the petitioner Association shall be deemed to be valid, in order to ensure that the ongoing Parliamentary Elections are not affected," the Court said.With these observations, the Court disposed of the plea..Advocates Abhimanyu Banerjee, Arnab Saha, Kamal Krishna Pathak, Rimpy Mukherjee and Narayan Nayak appeared for the petitioners (employees of cooperative banks).Advocates Joydip Kar and Anuran Samanta represented the ECI..[Read Judgment]