By PTI
NEW DELHI: The Supreme Court on Monday stayed the Calcutta High Court order directing the West Bengal State Election Commission to send CCTV footage of Contai municipal polls for a forensic audit to the Central Forensic Science Laboratory (CFSL) here saying “Our democracy rests on the faith of common citizen”.
The top court also stayed further proceedings on a PIL filed by Soumendu Adhikari, former chairman of Contai municipality, and asked him to consider withdrawing the petition before the High Court.
A bench of Justices DY Chandrachud and Surya Kant stayed the order of the High Court passed on April 26 and issued notice to Adhikari and others and sought their responses.
The bench said, “Any post-electoral intervention has to be dealt with in accordance with the process known to the law, otherwise this will set a dangerous precedent across the political spectrum. This will happen across the country and that too on a PIL. As a constitutional court, we are not concerned only about the Contai elections”.
It said that the top court has no problem with earlier orders passed by the High Court like directing CCTV installation and appointment of observers as it was for ensuring free and fair election but in post-electoral situations, it has to be on the election petitions.
“Our democracy rests on the faith of the common citizen”, the bench noted that the submission made by the state election commission is that the High Court in its order dated April 26 has transgressed its jurisdiction under Article 226 of the Constitution after the election process has concluded and results have been declared.
It added that the issue is whether the direction of the High Court can substitute the procedure provided by the law would merit further consideration.
Adhikari, former chairman of Contai municipality, had moved a petition before the high court alleging malpractices such as booth capturing, forged voting, and violence during the elections held on February 27 and prayed for an order to hold fresh polls in the municipality by deploying central forces.
Soumendu Adhikari had joined BJP after quitting the ruling Trinamool Congress following in the footsteps of his elder brother and Leader of Opposition Suvendu Adhikari in January last year.
He also made an interim prayer for a forensic audit of CCTV footage of the Contai municipal election.
At the outset, the bench told senior advocate Rakesh Dwivedi, appearing for the state election commission, that it is an interim direction and it appears that there have been serious irregularities if the court is intervening.
Dwivedi said to arrive at this finding, the court has to prima facie be satisfied that there is the tampering of CCTV footage but there are no such allegations levelled by anyone.
“Somebody has to come up with the allegation that footage is tampered with. Why should there be a forensic audit? There is no prima facie finding. Neither any electors nor any candidate has challenged the same. The prayer in the PIL is for alleged irregularities in eight wards only but the order has been made for the entire 82 wards of the municipality”, Dwivedi said.
Senior advocate PS Patwalia, appearing for Adhikari, said that this impugned order is one among several orders passed by the High Court.
“We have brought to the notice of the court how media personnel was assaulted, how voters were prevented from voting, and how out of 97 CCTV cameras several of them were destroyed, the matter was heard at length, and counsel for SEC conceded for forensic audit after which the order was passed”, he said.
The bench pointing to the prayers in the PIL said that after the election process is over the only remedy is the election petition and it cannot be substituted by the PIL.
“If you or anyone has any grievance with the polling or the results then they can file the election petition as per the procedure under the law. You better consider withdrawing the PIL before the High Court”, the bench said.
Justice Kant said that it is actually not a PIL but an election petition.
“Are you a candidate? Has any candidate of your party who has lost the election, filed any election petition? No. To the extent, the High Court passes any order for ensuring free and fair election, we have no problem with that”, Justice Kant said.
Patwalia said that the High Court was informed that whatever orders it had passed were not at all followed and hence the orders were passed.
“It was not a contempt petition. Once the election results are declared, the procedure of law says the remedy is an election petition. The High Court cannot collect the evidence in the name of PIL. This will set a dangerous precedent”, the bench said.
Dwivedi said that similar things could happen in Lok Sabha or assembly elections when by PIL the entire election could be challenged.
Patwalia said that a forensic audit report has been called in a sealed cover to which the bench said that “this sealed cover report business is itself dubious”.
On April 26, the High Court hearing a PIL alleging serious malpractices during the Contai municipal poll had directed the SEC to send CCTV footage for a forensic audit to CFSL, Delhi.
It had directed that the CFSL will carry out the forensic audit of CCTV footage and ascertain if booth capturing, EVM tampering, forged voting, or violence had taken place in the polling booths.
It had said that the exercise will have to be completed within six weeks and ordered the CFSL to submit the forensic audit report to it in a sealed cover.
