SC rejects TMC plea against EC counting officer order for West Bengal polls

THe sublime margaret court on sabbatum refused to flirt with a plea filed by the All republic of india Trinamool Congress (AITC) challenging the Election Commission of India’s directive requiring at least one Central government officer to be appointed as counting supervisor at each counting table for the West Bengal Assembly results scheduled for Monday.A special sitting bench of Justices PS Narasimha and Joymalya Bagchi dismissed the apprehension of bias expressed by the AITC and said that during elections all officers are under the control of the poll panel, and the Commission cannot be faulted for acting contrary to any regulation in choosing officers from the state or central pool.The April 13 ECI order under challenge specifies that “at least one among the counting supervisor and counting assistant at each counting table shall be a Central Government/Central PSU employee”. Senior advocate Kapil Sibal, appearing for the AITC along with senior advocate Meenakshi Arora, pointed out that the same order also requires one official at the counting table to be from the state government, which is not being done by the Commission.The ECI, represented by senior advocate Dama Sesadri Naidu, denied the charge and dismissed the petitioner’s argument as “wholly misplaced”. “That is a norm we follow even before they say it,” he said, adding that as part of “randomisation”, the “counting supervisor” and “counting assistant” are selected, and care is taken to ensure that if one is from the Central government, the other is a state government official. He further clarified that the Returning Officer, who has “overarching” power over the entire counting process, is necessarily an official from the state government service.“We are not getting from where you are getting this proportional representation. All officers discharging their duty are under control of ECI. It hardly matters whether they are from Central or state government. It is open for them to select from the pool of Central or state officers. When that option is open, we cannot hold that the ECI is acting contrary to regulations,” the bench said.Sibal said, “I have no problem if they implement this circular. My problem is that the micro-observer on each counting table is already a Central government officer. This circular mandates at least one of the counting supervisors to be from the Central government or PSU. All we want is a state government nominee should be there. Our instruction is it is not being done.”The court asked Sibal, “You are now wanting compliance of a circular that you have challenged.”The court disposed of the plea by recording the ECI’s assurance, saying, “No further orders are necessary except to reiterate the statement by senior advocate Dama Sesadri Naidu that the circular of April 13 will be implemented in true letter and spirit.”The AITC had approached the top court after its plea was dismissed by the Calcutta High Court on April 30. Moving an urgent appeal on Friday, the AITC through advocate Sanchit Garga questioned the timing of the order and the fact that it was not disclosed to them till April 29.Sibal told the court, “Why don’t they disclose the circular to us from April 13. We are given no advance notice about it. And going by their circular, they are assuming that at every booth there will be some irregularity.”The bench replied, “So far as you are concerned, there is no question of conferring with political parties. Your counting agents are there, election agents are there and on every table there is a counting supervisor, a counting assistant and a micro-observer. We are falling into a fallacy to assume central government employees will belong to some category.”Sibal then told the court that CCTV footage of the counting process should be preserved. “They destroy it after 45 days. Why shouldn’t it be preserved beyond this period,” he said.Naidu informed the court that as a matter of norm the CCTV recording is not kept beyond 45 days. However, if an election petition is filed, the same is preserved, he added.The High Court in its order passed on April 30 had brushed aside the apprehension of bias as “impossible to believe” and asked the party to challenge it in an election petition after declaration of results. The petition questioned the High Court’s decision, which it said fell into error in declining to entertain the matter. Further, the High Court was of the view that the ECI has the prerogative to appoint counting personnel from either the Central or state government, which cannot be questioned by the court.