Consent cloud after order Poll panel’s options ‘open’

The Telegraph


Calcutta, May 14: A division bench of Calcutta High Court today said the appeal on panchayat elections “has been amicably settled” and issued a “consent order” that scheduled the rural polls before July 15.

The Bengal government welcomed the order but the state election commission and its lawyer said late tonight that they had not given their consent. The commission is said to have come across four key areas of concern after going through the formal order of the division bench. (See chart)

Barrister Samaraditya Pal, who represented the commission in the court, said late tonight: “There is no such consent. We will take appropriate steps accordingly. When and how I cannot say immediately.”

Lawyers not connected with the case said options in such situations include moving a revision petition before the same bench of Chief Justice A.K. Mishra and Justice Joymalya Bagchi and approaching the Supreme Court.

Emerging from Pal’s residence, state election commissioner Mira Pande said in response to a question: “We do not give our consent to it.” Commission secretary Tapas Ray said “all options” were open.

Pande added: “The decision on moving the apex court is yet to be taken. We are consulting our lawyers, exploring the judgment in vivid detail…. The home secretary had called me after the judgment. They are not in town at the moment. We will talk when they return.”

Home secretary Basudeb Banerjee is accompanying chief minister Mamata Banerjee on her visit to north Bengal and is expected to return by Thursday.

Government pleader Ashok Banerjee said he was “stunned to know about Pal’s reaction”. “He had given his consent before the court at every step of the order,” Banerjee said.

Pal said it was a “custom”, which almost borders on “habit”, for lawyers to bow before the judges at the end of a ruling and say “we are grateful to your Lordship”. “But this does not mean that one is giving one’s consent,” he added.

The division bench has said that “as agreed”, the state government will notify the dates of election within three days from Tuesday. Although the election commission is weighing its options, it is simultaneously taking preparatory measures for holding the polls in three phases — possibly in the last week of June and the first week of July.

“We are not opposed to holding the polls on time. We have, in fact, always been most keen. But some aspects need to be settled in a court of law,” a commission official said.

A jubilant state government, which had challenged a single-bench order that upheld the primacy of the election commission, as well as the poll panel had claimed victory before the formal order was made public.

“The high court verdict is a welcome step,” a beaming Mamata Banerjee said. ( )

The commission’s empanelled advocate, L.C. Behani, had said: “Why should this not be seen as our victory? There is no ego at play, on our part, with regard to central forces. We want, above all else, to conduct free, fair and peaceful polls.”

But the commission came across four areas of concern after reading the formal order. The four, according to sources, are: the use of the phrase “amicably settled” in the ruling, the question of central forces, the need for consultation with the state government and the constitutionality of Section 42 of the West Bengal Panchayat Elections Act, 2003.

The commission wanted the section to be struck down — something the single bench had declined to do on Friday. Today, the division bench said it was only “modifying some aspects” of the single-bench order — which implies the lower bench’s refusal to strike down the section is still in place.

But the single-judge bench had also referred to an article in the Constitution on which the state act was based and which underscores the primacy of the commission in the conduct of elections.

The division bench said “the findings recorded before the single bench on merits shall not be treated as precedent as we have not gone into the merits of the case and issues are kept open to be agitated in appropriate proceedings”.

The commission was expecting an explicit judgment clearing the air, not a modification. “This is not a ruling because the judges have not gone into the merits of the case. This is just a settlement and the order of the court. I am not happy with it,” barrister Pal said.


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