West Bengal elections: Supreme Court dismisses petition against ECI's transfer of Chief Secretary, DGP, other officers

The Supreme Court on Thursday dismissed a petition challenging the Election Commission of India (ECI)’s orders for the transfer of various senior police officers and bureaucrats in West Bengal ahead of the State assembly elections.

A Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi said that such actions are routine and this was not tjhe first time.

"It happens everywhere. Not the first time," CJI Kant remarked.

However, the Court noted that the legal issue raised by the petitioner regarding absence of consultation by the ECI with the State government was valid.

Hence, it kept the question of law open though it declined to interfere in the present matter.

"Petitioner has raised substantial questions of law. However we are not intervening in it as of now. Question of law is kept open," the Court said while refusing to entertain the plea.

The Court was hearing an appeal against an order of the Calcutta High Court which had refused to interfere with the transfers.

The High Court had said that other officers have already replaced those transferred by the ECI.

It also declined to look into the aspect of impeachment proceedings initiated against Chief Election Commissioner (CEC) Gyanesh Kumar.

"More so, when no nexus between transfers and said motion could be established with accuracy and precision," it said.

The petition filed by advocate Arka Kumar Nag raised concerns that the ECI ordered a mass-scale transfer and removal of almost the entire senior administrative and police bureaucracy in West Bengal.

The ECI had recently ordered the replacement of the Chief Secretary, the Director General of Police, the Home Secretary, various District Magistrates, Superintendents of Police, and other senior officers from the Indian Administrative Services (IAS) and Indian Police Service (IPS). Subsequently, more officers were transferred.

Nag alleged that a large contingent of senior IPS officers from the West Bengal cadre were transferred out of the State on election observer duties to States like Tamil Nadu, Kerala and Nagaland.

His plea said that this "wholesale dismantling of the State's administrative machinery" ahead of the Assembly elections was not a bona fide exercise of power under Article 324 of the Constitution but a colourable and punitive measure.

The petition also said that such actions are gravely prejudicial to the public interest and fundamentally violate the principles of federalism.

Senior Advocate Kalyan Banerjee, appearing for Nag, said that the process followed by ECI was in contravention of the Representation of People Act of 1951.

He pointed out that there was no consultation with the State as per law.

"Whole process was in contravention of 1951 act. The power of superintendence does not take away legislative power. The superintendence power is in respect of unoccupied field. ECI cannot work in contravention of statute. State consultation is needed. Even for bye election it has happened. But this time nothing with West Bengal government," Banerjee contended.

"Officers who have been transferred are of West Bengal cadre. How are you prejudiced?" CJI Kant asked.

"High Court has mixed up the issues. Mandatory provision of statute has been violated. You (ECI) have changed SP, DG. What happened after that? Kaliachak incident happened," Banerjee said referring to the protests in Malda where people excluded from electoral rolls after special intensive revision gheraoed judicial officers.

"In order to ensure there is some elements of fairness, this was done. The State is going for elections in few days," the CJI replied

"I am not being impractical. I understand. I don't want stay etc. I have raised substantive questions. This can be decided later as well," Banerjee replied.

"We will decide in appropriate case and keep question of law open. Consultation does not mean concurrence," the CJI said.

"Absence of consultation cannot be there. Consultation is not concurrence but not having it is not law. I can understand my fate. 1,100 officers transferred overnight. Under what authority ? This happened for the first time in West Bengal. The first time chief secretary was transferred because she was opposing suggestions. Is this a ground to transfer," the Senior Advocate asked.

"This is the misfortune of the country that the very objective of creating All India Judicial Services is getting defeated and officers also working for postings etc. This is what is giving an impression in minds of the people. worst example was that we had to use our judicial officers. Trust deficit is on both sides. No trust of ECI on state officials. State does not trust ECI," the CJI said.

"Is this not then done by the Election Commission for the first time in India? All the past Chief Election Commissioners, none did this. Please read the question raised. Section 20 of the 1951 Act. Can you have an observer from another state? This is unique," Banerjee responded.

"This is not as new practice," the CJI said

"Practice cannot be contrary to the statute," Banerjee insisted.

"Don't keep elections in mind. An observer from outside is always ideal," the CJI said.

"But until parliament changes the law..we cannot follow such a practice. Can we read something which is beyond the law?" Banerjee asked.

"Look at the consequences. Forget about allegations. We are on it as a constitutional institution. If ECI is required to take a hard stand tomorrow to maintain free and fair election and you say no this is not in statute," the CJI said.

"If the court reads the law differently, then it's fine. Why so many questions this time only. I am busy in elections. But now I am busy in courts," Banerjee retorted.

Justice Bagchi then intervened.

"Mr Bandhopadhyay I should not open my mind. West Bengal elections have been a field of electoral litigation since 1970s-80s. Issues may come in different facet. Look at allegations on Lokhikanto Sen case.. Mr Ajit paja was a petitioner in the sen case who said there was en masse inclusion of names. Justice Sabyasachi Mukherjee dealt with this case," Justice Bagchi said.

"In 1981. That was my first case in the legal profession," Banerjee recalled.

"We can keep the question of law open since the point on consultation may have some weight," Justice Bagchi said.

"I was hoping for the same. Order was passed by High Court by following a short cut process. If you have to avail technical ground to dismiss do it within 5 minutes. I hope I do not disturb Your Lordships till April 29," Banerjee said.

The petition was dismissed with the question of law being kept open to be decided in another appropriate case.

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