West Bengal Post-Poll Violence: Who Was Police Reporting To?

Who was responsible for law and order when post-poll violence and misinformation was spiraling in West Bengal?

(illustration: Aroop Mishra/The Quint)

Over four days have passed since the first reported incident of post-poll violence in West Bengal, which has reportedly claimed 14 lives so far, nine of whom were claimed as workers of the Bharatiya Janata Party (BJP) and five of the Trinamool Congress (TMC).

Fake news, incitement of communal violence, and online hate speech have also been in full display in the state - all of them criminal offences under the Indian Penal Code.

But, even now, there is no clarity on the official number of people who have been arrested for the arson that took place in different parts of the state, since Mamata Banerjee-led Trinamool Congress swept the state for a third term.

So, who takes responsibility for the deterioration of law and order in the state? Who was the West Bengal police reporting to? And, why has it largely been missing in action in terms of taking control of the situation?

EC Was Responsible For Law & Order For 2 Days After Violence First Spiralled

Violence, loot, and threats were being reported in different parts of the state since 2 May. Till 3 May, when the Model Code of Conduct was lifted, law and order in every state that went to polls, including in West Bengal, was the responsibility of the Election Commission, as per protocol.

Former Chief Election Commissioner SY Quraishi told The Quint:

“The police comes under the Election Commission after the notification of the elections in a state. From the DGP to a constable, they are all on deputation of the Election Commission. But, if there is a local crime like theft, the police will do their job routinely but that does not mean they are not under the Election Commission.”

With the power vested on them under Article 324 of the Constitution, the Election Commission replaced three senior police officers in the state, including the DGP during the eight-phase elections in the state.

Does That Abdicate Mamata Banerjee of All Responsibility? Not Really.

After repeated demands of imposition of the President’s rule in the state by BJP leaders, a central team was sent to West Bengal to probe the multiple instances of violence. Banerjee, who took oath as the Chief Minister for the third consecutive time, lashed out saying, “the law and order were not under her control” and it has just been “24 hours since she took the oath.” She accused the BJP of trying to avenge their loss by politicising the issue and question BJP President JP Nadda’s visit to the state.

But, as per convention, from the time the Model Code of Conduct is lifted till the swearing-in of the new chief minister, law and order continue to remain under the purview of the incumbent or the caretaker government in the state.

In this case, the caretaker government in West Bengal is the TMC government, led by Mamata Banerjee.

Speaking to The Quint, former secretary-general of Lok Sabha and senior constitutional expert Subhash Kashyap said, “Even after an incumbent chief minister resigns, the governor asks them to continue till alternative arrangements are made. While the caretaker government cannot introduce any new policies, all day-to-day activities, including law and order, remain under their control.”

The same protocol was confirmed by a senior police official in the West Bengal Police department to The Quint, who added, “Morally, it is the responsibility of the politically mandated caretaker government, practically, the bureaucracy including the chief secretary and the top police chiefs are responsible for maintaining law and order in the interim period till a new government swears in.”

What West Bengal’s Top Cops Say

Hours after swearing-in, CM Banerjee effected a major reshuffle in the police hierarchy, transferring 29 top officers, mostly bringing back policemen to their former positions who were transferred by the Election Commission.

On Wednesday morning, Banerjee had indicated that she was not happy with the inefficiency of the police in different areas. Supreme Court advocate Shoeb Alam said,

“It is not enough to just accuse inefficiency of police officials. The caretaker CM has to come forward and support the allegations by showing what steps she has taken. She could have sent further forces, she could have ordered the home secretary and the DGP to take stock immediately, directed district police chiefs to take action, etc.”

Neeraj Nayan Pandey, who was brought in as DG by the election commission and replaced by Mamata Banerjee on Thursday, said, “ I cannot comment on the number of arrests that have been made so far or on the situation since I don’t hold the position anymore.” Pandey was replaced by Virendra, who held the position before him.

On the other hand, Jawed Shamim, who has been reinstated as ADG (Law and Order) said, “I need some time to gauge the entire situation before I can comment on it. I have just been reinstated.”

What Role Does Governor Play?

West Bengal Governor, Jadgeep Dhankar who has always been accused by the chief minister and Trinamool Congress leaders of being a spokesperson of BJP had expressed serious concern over the law-and-order situation in the state and even spoke to Prime Minister Narendra Modi on the issue.

Kashyap said, “As head of the state, all executive powers rests with the governor. They are to be exercised on the advise of the council of ministers. So, even in the interim period, the existing situation continues where the governor has certain overriding powers which he can exercise, as per his discretion.”

This includes the power to recommend a President’s Rule in a state, as has been demanded by a plea in the Supreme Court and several BJP supporters, who claim the attacks have mostly been carried out in a “targetted” manner and the state government has failed to do its duty.

Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru, Alok Prasanna Kumar, said, “Under Article 356 of the Constitution if a state government is unable to function according to the Constitution, the Centre can take direct control of the state following the procedure under Article 356. But, the clauses have to be invoked in accordance with the Supreme Court's Bommai judgment."

A nine-judge Constitution Bench of the court in the 1994 Bommai case, had held that political whim or fancy cannot form the basis for the President to proclaim central rule in a State.

The court had further noted, "...the framers of the Constitution had taken pains to specify that President should proclaim central rule in a State only, and only, if a situation arises by which governance of the State is either disabled or prevented from continuing " in accordance with the provisions of the Constitution".

The provision of the Constitution under Article 356(A), as noted by the Court to be strictly adhered to include:

• If the President is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
• The state government is unable to elect a leader as chief minister within a time prescribed by the Governor of that state.
• There's a breakdown of a coalition leading to the chief minister having a minority support in the House, and the CM fails to prove majority in the given period of time.
• Loss of majority in the Assembly due to a vote of no-confidence in the House.
• Elections postponed on account of situations like natural disasters, war or epidemic.