Why Election Authority lacks neutrality to hold polls in hilly Darjeeling, Kalimpong areas

By Sumit Kumar Ganguly* 
On July 29, twelve years ago, the first election to the Gorkhaland Territorial Administration (GTA) was held. The GTA is the semi-autonomous body responsible for the governance of the hill areas of Darjeeling and Kalimpong districts in West Bengal. The separate administrative setup was created under a State legislation in the wake of the Gorkhaland statehood movement by the Gorkha Janmukti Morcha (GJM) led by Bimal Gurung. Most people are unaware of the fact that the election to this body is not conducted by any independent constitutional authority like the Election Commission of India (ECI) or the State Election Commission (SEC).

As per Section 12(2) of the Gorkhaland Territorial Administration Act, 2011, the election to the GTA Sabha is conducted by the State government. Moreover, the State government is empowered to make rules regulating elections under Section 20. The Gorkhaland Territorial Administration (Elections) Rules, 2012 were framed under this provision. As per the aforesaid rules, the Election Authority is an officer appointed by the State government. 

The Election Authority is vested with the superintendence, direction and control with the preparation of electoral rolls and conduct of elections to the GTA Sabha. For the 2022 GTA polls, the State Government appointed the Divisional Commissioner of Jalpaiguri as the Election Authority.
The 73rd Constitutional Amendment Act, 1992 pertaining to the Panchayats introduced Article 243K to the Constitution of India providing for a SEC for election to the Panchayats. It would consist of a State Election Commissioner appointed by the Governor. Article 243ZA, introduced by the 74th Constitutional Amendment (1992), has a similar provision for election to the Municipalities in reference to Article 243K. 

The Constitution further provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities would be vested in the SEC. Consequently, the West Bengal State Election Commission Act, 1994 established the WBSEC.
The question is whether the State government can hold free and fair elections to the GTA Sabha. The ‘Election Authority’ is an officer appointed by the State government who is subordinate to its jurisdiction. 

Therefore, it is presumed that he cannot act in an apolitical and neutral manner. It is likely that the State government will influence the decision-making of the Election Authority. So, there cannot be a true democracy for the hill people. 

The first election to the GTA in 2012 was marred by violence and intimidation. All the CPI(M) candidates were forced to withdraw from the fray as they faced life threats from the GJM sponsored goons. The GJM was able to capture all the 45 seats in the GTA, out of which they won 28 uncontested. The last election held in 2022 was delayed by almost five years after a violent Gorkhaland agitation in 2017.

Before the establishment of GTA, the Darjeeling Gorkha Hill Council (DGHC) was the statutory body that was governing the hill areas. Under the DGHC Act, 1988, the State Government had the power to make rules regulating the election of members of the General Council. To be precise, the elections were conducted by the State Government like it happens now. 

 In the second and third DGHC elections, there was widespread rigging and intimidation by the ruling Gorkha National Liberation Front (GNLF) cadres. The election officials completely overlooked it. The then Left Front government lacked the political will to amend the law to let the SEC conduct the polls.
Under the Sixth Schedule of the Constitution, there exists ten Autonomous District Councils (ADCs) or Regional Councils in Assam, Meghalaya, Tripura and Mizoram for the administration of tribal areas. The elections to the Karbi Anglong Autonomous Council (KAAC), North Cachar Hills Autonomous Council (NCHAC) and Bodoland Territorial Council (BTC) are conducted by the Assam State Election Commission. In case of Tripura, the Tripura Tribal Areas Autonomous District Council (Constitution, Election and Conduct of Business) Rules, 1985 were amended in 2000 to include the Tripura State Election Commissioner to be the Election Commissioner for the ADC. 

For Mizoram, separate rules vested the conduct of election for the Chakma ADC, Mara ADC and Lai ADC in the Mizoram State Election Commission under Article 243K. The Constitution (One Hundred and Twenty-Fifth Amendment) Bill, 2019 pending in the Rajya Sabha introduces the provision for conducting elections to all Autonomous Councils by the SEC.

There are several Autonomous Councils other than the erstwhile DGHC or the GTA that have been established through state legislations. Before Jharkhand became a State, an Autonomous Council was established for the region by the Bihar State Legislature. The Jharkhand Area Autonomous Council Act, 1994 for the first time specified that the election of the members would be conducted by the Bihar State Election Commission. 

In Assam, there are several Autonomous Councils that have been established by the State Legislative Assembly for social, economic, educational, ethnic and cultural advancement of the particular Scheduled Tribe (ST) communities residing in both satellite areas and core areas. The Autonomous Council Acts and the election rules framed thereunder have specifically empowered the Assam State Election Commission to conduct the polls. 

The Manipur (Hill Areas) District Council Act, 1971 was amended in 2008 to provide for the conduct of election in the Manipur State Election Commission. The election to the Sinlung Hills Council created for the Hmar community is conducted by the Mizoram State Election Commission as per the State Act.
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The institution of GTA is an example of asymmetrical federalism. However, the position of the GTA at the sub-State level is unclear. It cannot be said to be a local self-government institution. As per Section 34(1) of the GTA Act, 2011, the GTA has the power of supervision over Municipalities, Gram Panchayats, Panchayat Samities and Zilla Parishad. 

Moreover, the GTA can exercise all the powers of the Zilla Parishad under Sections 153 to 162 of the West Bengal Panchayat Act, 1973 until the Zilla Parishad is constituted. In 2023, the elections for the two-tier Panchayat in Darjeeling and Kalimpong districts were held by the WBSEC after 23 years. Nonetheless, by allowing the State government to hold the election under the law, the status of the GTA was downgraded to below the Gram Panchayat, as the election to the latter is conducted by the SEC.
It was reiterated by the Supreme Court in Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 865] that holding periodic, free and fair elections by the Election Commission are part of the basic structure of the Constitution. Therefore, if the GTA election is held by the SEC, which is a constitutional body, it will at least be seen to be free and fair. At present, the nodal agency for conducting elections is the Home and Hill Affairs Department, Government of West Bengal. 

The Minister-in-Charge for this department is Chief Minister Mamata Banerjee. Also, in West Bengal State Election Commission v. State of West Bengal and Ors. [MANU/WB/0329/2013], the Calcutta High Court observed that “to achieve total neutrality in respect of conduct of election, which is possible only through the apolitical and neutral Constitutional body, i.e., the Commission and the pivotal role played by it in the election process.”
However, there have been many instances in the past decade when the WBSEC has appeared to work for the ruling political establishment. The WBSEC did not take any concrete steps to stop the governing party Trinamool Congress from rigging and violence during the Panchayat polls (2018 and 2023) and the Municipal polls (2015 and 2022).

The Constitution gives sufficient protection to the State Election Commissioner to act in an independent and impartial manner. Under Article 243K(2), he/she cannot be removed from his/her office except in like manner and ground as a High Court Judge (i.e. impeachment) and his/her service conditions cannot be varied to his/her disadvantage after the appointment. When Mira Pande was the State Election Commissioner, she had her way to conduct the 2013 Panchayat polls in multiple phases along with the deployment of central forces after fighting a legal battle with the hostile State government.

The petitions challenging the constitutional validity of the GTA Act, 2011, are still pending in the Calcutta High Court, and I have written about it earlier. Irrespective of that, the Act must be amended to provide for the WBSEC to hold elections. The politicians from the hill region should urge the State government to bring a Bill in the West Bengal Legislative Assembly to that effect. 

There should be a broad-based consensus for it, as the 2022 GTA elections were boycotted by the BJP, GJM and GNLF and few other parties. It would strengthen the democracy of the hill people at the grassroots level.

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*Author of “Gorkhaland: Autonomy and Self-governance” (LLM dissertation);  interests include electoral reforms and autonomous councils. Contact: sumitganguly.law@gmail.com. Photo courtesy OpenVerse: Bimal Gurung and Mamata Banerjee at the swearing-in of the GTA in Darjeeling on August 4, 2012