HC gives go-ahead for Bhabanipur by-poll, berates chief secretary for "misleading" EC

The Calcutta High Court on Tuesday gave the go-ahead for the September 30 by-poll to the Bhabanipur assembly seat, from where West Bengal Chief Minister Mamata Banerjee is contesting, saying it does not want to interfere with the Election Commission's decision at this stage.

The court, however, severely berated H K Dwivedi, the state's chief secretary, for projecting himself ''more as a servant of the political party in power than a public servant'' by writing to the election panel seeking early by-poll in Bhabanipur to avoid a ''constitutional crisis''.

Fayan Sinha, the petitioner, had filed a PIL for quashing the EC's decision to hold the by-poll on account of ''misleading'' submissions made by the chief secretary.

Passing the order, a division bench presided over by Acting Chief Justice Rajesh Bindal recorded its ''strong reservation'' about the conduct of the chief secretary in writing the letter to the EC.

''As the process of election was initiated with the issuance of press note dated September 04, 2021, and the polling has to be held on September 30, 2021, we do not find it appropriate to interfere with the decision of the Commission to hold a by-election to Bhabanipur Assembly Constituency at this stage,'' the high court said in its order.

Taking exception to the letter, the bench, also comprising Justice Rajarshi Bharadwaj, said the chief secretary is a public servant, who has to discharge his duties in terms of provisions of law, whosoever may be in power. The bench said a perusal of paragraph 6 of the press note issued by the EC shows that the information furnished by the chief secretary to the commission was contrary to facts.

It said the EC was ''misled'' by the letter on the COVID-19 situation in the state being under control, as restrictions on account of the pandemic had been extended up to September 30.

The EC was also misled about the flood situation as it is known to all that there had been excessive rains in the state, the court said.

''Be that as it may, the most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be a constitutional crisis in case election to Bhabanipur Constituency is not held from where respondent No. 5 (Mamata Banerjee) wants to contest the election,'' it said.

''What constitutional crisis the Government could face with one person losing or winning the election was not explained,'' the bench observed, and wondered ''How the Chief Secretary knew that the respondent No. 5 was to contest election from Bhabanipur Assembly Constituency? He was not a party spokesman or a returning officer.'' The high court said the officer was not there to ensure that a particular person should come to power, and in the absence of that person, there would be a ''constitutional crisis''. The division bench said the petition will now be listed for hearing on November 17 for consideration of a host of ''larger issues''.

The court had on September 24 said that an elected member (TMC's Sovandeb Chattopadhyay) from the Bhabanipur constituency was made to resign so that the seat becomes available to enable Banerjee to contest the election. Noting that it costs crores of rupees to the public exchequer to hold elections, the court had said the decisions on such matters should not be left to the whims and fancies of people in power.

The bench ordered the matter to be listed for hearing on November 17 to decide the larger issue as to who should bear the cost to be recurred by the state exchequer, if an elected candidate resigns from his constituency before completion of the term without there being any legal disability, to enable another person to contest the election from that constituency.