Who has the legal authority to postpone or cancel the January 22 civic poll? Is it the state government or the State Election Commission?

The questions cropped up at Calcutta High Court on Thursday as the poll panel and the state government took divergent positions during the hearing of a PIL seeking postponement of the polls to four municipal corporations — Bidhannagar, Chandernagore, Asansol and Siliguri — because of the Covid-19 situation prevailing in the state.

The issue of “who had the authority to decide on the fate of the civic polls” came up while a division bench consisting of Chief Justice Prakash Shrivastava and Justice Arindam Mukherjee was hearing a PIL filed by social activist Bimal Bhattacharyya seeking an order asking the SEC to postpone the January 22 civic polls in view of the spike in Covid cases in the state. Though hearing in the case has been completed, the bench is yet to deliver its verdict.

Appearing for the state, advocate general S.N. Mukherjee said: “It is a fact that according to law the SEC is bound to hold consultations with the state government before declaring civic or panchayat polls. However, it is not necessary for the SEC to obtain prior approval from the state to postpone or cancel the election schedule?"

Countering the contention of Mukherjee, counsel for SEC Jayanta Mitra said: "As per the West Bengal Municipal Election Manual, 1995, the SEC will have to fix the election schedule after consultation with the state. That means it must discuss with the state or obtain its approval for postponing or cancelling the election."

To this the advocate general said: “The state has the authority to give its opinion to the SEC before the poll schedule is decided but once the election is announced, the state has no role to play."

Advocate Mitra said: "According to the West Bengal Municipal Elections Amendment Act, 2006, the state would have to provide all sorts of assistance to the commission for conducting the poll. Due to the spread of Covid in the state, it (the government) may also ask the SEC to postpone the polls."

After the two sides took contradictory positions on the issue, the Chief Justice said: "The SEC and the state government have divergent views about the process of postponing the election. At this stage the SEC can take the opinion of the state disaster management department before cancelling the polls."

Both the lawyers agreed to the suggestion and told the Chief Justice the two sides would seek the opinion of the disaster management department if the court so directed.

The Chief Justice repeatedly asked lawyers of all sides — petitioner, state government and the SEC — whether the court could on its own ask the poll panel to postpone or cancel the polls?

The petitioner’s lawyer said the court could do it but the counsels for the state and the SEC did not respond.

At this point, the hearing of the case ended and the bench adjourned the verdict. A court officer said: "The verdict will be uploaded on the high court website later."

Speaking to The Telegraph about Thursday’s hearing, senior advocate Bikash Ranjan Bhattacharyya said: "The SEC has the power to postpone or cancel the polls. But in the state not a single department is allowed to act independently. Even the SEC functions under the state.”

Earlier in the day, when the case had come up for hearing before the bench, both the SEC and the state government had filed their responses in separate affidavits.

In its affidavit, the state had informed the court about the number of containment zones in the four municipal areas where polling will be held on January 22.

It also gave a count of the number of people who had succumbed to Covid at these places.

The SEC’s affidavit gave the court detailed information about its infrastructure to conduct the polls and steps it had taken to comply with Covid protocols.