Voter moves HC on new SEC

Terms govt’s use of 1994 Act to appoint Alapan ‘unconstitutional’

Kolkata | Updated: October 9, 2015 12:28:15 am
SEC Alapan Bandyopadhyay (left) with Bidhannagar Police Commissioner Jawed Shamim, in Kolkata on Thursday. (Express photo) SEC Alapan Bandyopadhyay (left) with Bidhannagar Police Commissioner Jawed Shamim, in Kolkata on Thursday. (Express photo)

It was the West Bengal Municipal Elections Act, 1994, passed by the then CPM government, that the Mamata Banerjee government used to paradrop serving IAS officer Alapan Bandyopadhyay as the “temporary” State Election Commissioner of Bengal, after S R Upadhyay resigned from the post Tuesday, allegedly bowing down to political pressure. On Thursday, as Bandyopadhyay ordered for repolling in 11 booths in Bidhannagar and Asansol Municipal Corporations, a voter challenged his appointment and the use of the 1994 law before the Calcutta High Court with the opposition, too, raising question.

The petition, filed by one Amitava Majumdar (74), a resident of BA Block in Bidhannagar, challenges the 1994 law that included the provision to address contingencies arising from “illness, death, resignation, removal and expiry of term”. The petition seeks an interim order prohibiting the provisional appointee from taking any decision on polling, repolling or any other decision on the constituencies that went for elections. Majumdar also told the court that he was assaulted when he had gone to cast his vote.

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A senior CPM leader, who didn’t wish to be named, was quick to point out the irony. “Every retreating army destroys the armaments it can’t take with it. But in this case, the law was designed in a manner that the state government, and not the SEC, has the primacy. In this case, the 1994 Act is very different from similar Acts in other states. But now the TMC government is using the same weapons that had allowed the CPM to rule without opposition for so long.”
The Act, passed when Jyoti Basu was the chief minister, has a provision that looks at contingencies such as “illness, death, resignation, removal and expiry of term”. Appearing for the petitioner, lawyer Arunabha Ghosh, however, termed the Act itself as “unconstitutional”.

“The very idea of a temporary election commissioner is against the spirit of the Supreme Court order that says that the SECs must function outside the realm and influence of the government. The former SEC has admitted publicly that he was under pressure and consequently resigned. In West Bengal, it is clear that the EC can’t function as an institution. Any officer who is appointed as the SEC will have to eventually go back and serve as an officer. This is a clear conflict of interest,” the leader said, adding that the matter is likely to be heard on October 15.

The Chief Election Commissioner and Other Election Commissioners Act of 1991 says: “A person who, immediately before the date of assuming office as the Chief Election Commissioner or an Election Commissioner was in service of Government, shall be deemed to have retired from service on the date on which he enters upon office as the Chief Election Commissioner or an Election Commissioner….”

But after taking charge as the SEC, Bandyopadhyay had said, “The government of West Bengal, invoking a legal provision, has duly appointed me…. I have complied with that order. The government will decide whether I will continue as principal secretary (transport) or not. I will comply with that order. Since when has lawful orders of a lawfully-constituted government been an offence?”

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