Kolkata, Apr 22 The Calcutta High Court on Wednesday stayed an order of the Election Commission's police observer, engaged in the West Bengal assembly elections, who termed several citizens as "troublemakers" and directed action against them.
Acting on a PIL that claimed people's fundamental right to liberty would be affected by the order, a division bench held that the police observer had "erred in issuing blanket direction by treating certain citizens as troublemakers".
The division bench presided by Chief Justice Sujoy Paul stayed the effect and operation of the April 21 order till June 30.
The court, however, made it clear that this order will not come in the way of the civil/police authorities to proceed against any person who commits an offence under the Bharatiya Nyaya Sanhita (BNS), Representation of People's Act 1951 or any other penal law.
"Putting it differently, even if the persons, whose names find place in Annexure A of the letter dated April 21, 2026, commit an offence, this interim order will not come in the way of the authorities to proceed against them in accordance with law as per their own independent discretion," the court directed.
The division bench, also comprising Justice Partha Sarathi Sen, also directed that for exercising the power of 'preventive detention/action', the authorities can proceed strictly in accordance with the relevant detention law.
Petitioner's counsel Kalyan Banerjee submitted to the court that the police observer's memo states, "It has been observed from various quarters that persons, whose names are mentioned in the enclosed list (Annexure A), are actively involved in intimidating voters and creating disturbances in the electoral process in the respective assembly constituencies/ police station areas indicating against their names."
Banerjee, also a Trinamool Congress MP, claimed before the court that the list contains the names of about 800 people and many of them are elected representatives, such as MPs, MLAs, councillors and members of panchayat bodies and municipalities.
He contended that no citizen, as per provisions of Article 21 of the Constitution, can be deprived of their right of personal liberty except according to the procedure established by law.
Senior advocate D S Naidu, representing the Election Commission of India, submitted that the whole endeavour of the poll panel is to ensure free, fair and peaceful elections.
He stated that in order to do the same, police authorities concerned are reminded of their duties and that the ECI has not directed the police to do something without following due recourse of law.
The matter will come up for hearing again after five weeks, the division bench directed.
The court said it goes without saying that when election-related offences are prescribed in the BNS and the RP Act, 1951, the authorities entrusted therein alone are competent to take action as per their own discretion if any such offence is committed.
It said that the Constitution makes it clear that the freedom of a citizen can be curtailed only in accordance with the procedure prescribed under the law.
"In our opinion, an important constitutional/legal question cropped up for our decision as to whether in exercise of power under Article 324 of the Constitution, Election Commission can issue such a general instruction like the present one, when the offences relating to election are statutorily covered under BNS and RP Act, 1951, etc.," the court said.
The division bench granted to ECI four weeks time to file their affidavit in opposition to the contentions of the petitioner, while directing the petitioner to file their response, if any, within two weeks therefrom.
Kolkata, Apr 22 The Calcutta High Court on Wednesday stayed an order of the Election Commission's police observer, engaged in the West Bengal assembly elections, who termed several citizens as "troublemakers" and directed action against them.
Acting on a PIL that claimed people's fundamental right to liberty would be affected by the order, a division bench held that the police observer had "erred in issuing a blanket direction by treating certain citizens as troublemakers".
The division bench presided by Chief Justice Sujoy Paul stayed the effect and operation of the April 21 order till June 30.
The court, however, made it clear that this order will not come in the way of the civil/police authorities to proceed against any person who commits an offence under the Bharatiya Nyaya Sanhita (BNS), Representation of People's Act 1951 or any other penal law.
"Putting it differently, even if the persons, whose names find place in Annexure A of the letter dated April 21, 2026, commit an offence, this interim order will not come in the way of the authorities to proceed against them in accordance with law as per their own independent discretion," the court directed.
The division bench, also comprising Justice Partha Sarathi Sen, also directed that for exercising the power of 'preventive detention/action', the authorities can proceed strictly in accordance with the relevant detention law.
Petitioner's counsel Kalyan Banerjee submitted to the court that the police observer's memo states, "It has been observed from various quarters that persons, whose names are mentioned in the enclosed list (Annexure A), are actively involved in intimidating voters and creating disturbances in the electoral process in the respective assembly constituencies/ police station areas indicating against their names." Banerjee, also a Trinamool Congress MP, claimed before the court that the list contains the names of about 800 people and many of these persons are elected representatives, such as MPs, MLAs, councillors, and members of panchayat bodies and municipalities.
He contended that no citizen, as per provisions of Article 21 of the Constitution, can be deprived of his right of personal liberty except according to the procedure established by law.
Senior lawyer D S Naidu, representing the Election Commission of India, submitted that the whole endeavour of the poll panel is to ensure free, fair and peaceful elections.
He stated that in order to do the same, the police authorities concerned are reminded of their duties and that the ECI has not directed the police to do something without following due recourse of law.
The matter will come up for hearing again after five weeks, the division bench directed.
