As State Election Commisson's (SEC) counsel Samaraditya Paul today initiated an unprecedented legal battle with the West Bengal government over panchayat poll, experts pointed out interpretations of two words—"consultation" in the state Panchayat Act and "staff " in section 3 of 243K constitution lie at the heart of the conflict.
Today's hearing, that lasted for merely half an hour, Paul, who had earlier represented the Tatas against the state government in the singur case, pointed out the state's non-cooperation with the SEC in conducting the rural polls.
Meanwhile, after the hearing, the Left parties today appealed to Justice Biswanath Samaddar to join as an "interested party" in the case.
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This first part of the controversy is rooted in the interpretation of Section 42 of the West Bengal Panchayat Elections Act 2003, which says, the state government shall announce poll in consultation with SEC. The original West Bengal Panchayat Act, 1973 was revised in 2003 as the State Election Commisson (SEC) came into effect in the meantime.
Incidentally, Mamata Banerjee-government is using this Panchayat Act, made by the erstwhile Left Front government to defend its case. The Bengal government said, there were many meetings between the SEC and the state government officials, besides exchange of a series of letters between the two authorities. Hence, it argues, consultation did take place.
Also, state Panchayat minister Subrata Mukherjee, pointed out the fact that the state government climbed down from its initial demand from a single phase-election and later agreed to make some alteration in the division of districts in two phases, was a result of that consulation.
He claimed,"consultation does not mean concurrence".
On the other hand, the poll panel says there was no effective consultation and before both could agree on certain decision, the West Bengal government arbitrarily announced the poll dates.
In fact, in its petition, the SEC questioned the state government's authority to announce poll dates, as it argues, Section 42 of the West Bengal Panchayat Elections Act is contrary to the provisions laid down by the Article 243K of Indian Constitution. The Article says, the SEC has the absolute power of superintending, directing and conducting the Panchayat election.
The commission also prayed in the court to be allowed to seek and deploy as many number of paramilitary and other central forces as it may feel necessary for conducting the panchayat polls. State panchayat minister Subrata Mukherjee said that the SEC's demand for 800 companies of central forces was "absurd and unnecessary" for conducting the election, claiming that law and order in West Bengal was better than in any other state.
This part of the controversy stems from different interpretation of the word "staff" in section 3 of Article 243K of Indian constitution. The concerned section says, Governor of the state shall be available to all the staff as the SEC may ask for.
While, the state government argues the word "staff" does not include security personnel, the SEC contradicts the claim.
Commenting on the controversy, former justice of Calcutta High Court Bhagwati Prasad Banerjee, pointed out the word "consultation" in state Panchayat should achieve constitutional objectives as no state Act can be contradictory to constitutional provisions.
"In a similar kind of case, the Constitution says the Supreme Court judge shall be appointed by the President in consultation with the Chief Justice. In 1998, the BJP-led government at Centre had made a reference case to Supreme Court, asking it to explain the word "consultation" in this regard. SC had then said consultation there does mean concurrence. This should be the case in Panchayat Act also," Constitutional expert and former principal of Presidency College Amal Kumar Mukhopadhay said.
"Staff too I do believe should include security personnel. Though there are different views. Court needs to settle both these questions," he added.