The Election Commission of India (ECI) told the Calcutta high court on Wednesday that it possesses residuary powers under the Constitution to transfer and post officers in any state to ensure free and fair elections.
Senior counsel D S Naidu, who appeared for the poll panel, told a bench of chief justice Sujoy Paul and justice Partha Sarathi Sen that the commission was vested with residuary powers to deal with any unforeseen circumstances that might affect free and fair elections.
Arka Nag, a lawyer and Kolkata resident, filed the petition on March 20, challenging the transfer of 79 senior officers, including the state’s top bureaucrats. Many of them were posted in other states where polls are being held. Among those transferred are chief secretary Nandini Chakraborty, director general of police Peeyush Pandey and Kolkata Police commissioner Supratim Sarkar.
Nag’s petition said this “wholesale dismantling” of the state’s administrative machinery was “not a bona fide exercise of power” under Article 324 of the Constitution.
“The said drastic action is a direct and immediate consequence of the impeachment motion initiated by the elected representatives of the people of West Bengal against Chief Election Commissioner Gyanesh Kumar. The timing and scale of the transfers betray a clear retaliatory motive, amounting to malice in law and fact,” the petition said.
When the first hearing was held on March 23, senior advocate Kalyan Banerjee, who is representing Nag, argued that Article 324 of the Constitution was a “plenary provision” that gives the ECI the power to discharge its functions and conduct elections but does not empower it to act arbitrarily or violate laws framed by the legislature.
On Wednesday, Banerjee, who is also a Trinamool Congress Lok Sabha member, argued that the EC’s plenary powers were not in question but were subject to laws enacted under Article 327 of the Constitution, which empowers Parliament to enact laws for assembly and parliamentary polls.
Banerjee also told the bench that the ECI transferred 70 returning officers after the PIL’s first hearing.
The EC’s legal team had previously objected to Nag’s petition, pointing out that he was a state-appointed lawyer.
Banerjee countered the argument on Wednesday, underlining that Nag was not a government employee but worked as a retainer.
The next hearing is scheduled for March 27.
The Bengal polls will be held on April 23 and 29. The votes will be counted on May 4.
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