The central legal point established in the judgment is the requirement for the Commission to exhaust its powers under the Child Rights Act, 2005, including conducting an inquiry, before approaching the constitutional court.

ORDER

Soumen Sen, J. - The Chairperson West Bengal Commission for Protection of Child Rights has filed an application under Article 226 of the Constitution of India in the nature of public interest litigation.

2. In the writ petition the petitioner has prayed, inter alia, for a writ in the nature of mandamus directing the Election Commission of India to compensate each of the families of the children who have lost their lives due to Covid-19 disease in the State following the announcement of general election on 26th February, 2021 as the said Commission is responsible and accountable for the death of such children. The petitioner has prayed for other reliefs which are connected and/or incidental to the reliefs as stated above.

3. The petitioner has stated that being the Chairperson of the West Bengal Commission for Protection of Child Rights she wants to highlight the plight of children affected by Covid-19 in the state and the appalling condition of the children which was the direct outcome of the insensible decision of the election commission to conduct the general election in the state in eight phases during covid and its failure to present the rapid spread of the disease while such elections were in progress. The writ petitioner alleged that statistics of pre and post poll Covid cases would reveal that a large number of children have been directly and indirectly affected during the time when the general election was conducted in the State. The decision of the Election Commission in conducting assembly elections in the State of West Bengal spanning over a period of 34 days with an unprecedented eight phases covering 295 constituencies had aggravated the pandemic situation existing at the relevant time and because of such irrational and arbitrary decision of the election commission to hold election in the State, a large number of children have lost their lives and are now required to be compensated by the Election Commission.

4. Before we enter into further details in this regard, we would like to address first as to whether the writ petition would at all be entertained in view of the objection raised on behalf of the Election Commission relating to the maintainability of the writ petition.

5. Mr. Arvind Dattar, the learned Senior Counsel appearing on behalf of the Election Commission has raised the issue of maintainability of the writ petition inter alia on the following grounds:

i) The West Bengal Commission for Protection of Child Rights (the 'Commission') can file a Writ Petition only if the enquiry is completed in terms of Section 15(1)(ii) read with Section 24 of the Commission for Protection of Child Rights Act, 2005 (the 'Act').

However, no such enquiry has been conducted by the writ petitioner.

ii) Unless such an enquiry is completed no writ petition is maintainable as held by the Division Bench of Gauhati High Court in National Commission for Protection of Child Rights v. State of Arunachal Pradesh, reported in (2021) GauLR 351.

iii) The Child Rights Commission Act has a statutory body and accordingly it is not open to the writ petitioner i.e. a chairperson of a commission to file the present writ petition in her individual capacity.

6. Mr. Dattar, the learned Senior Counsel has submitted that during the election time the Election Commission is only concerned with administration of elections while the general administration continues to be the obligation of the respective state governments including implementation of the Disaster Management Act, 2005 and in this regard he has relied upon paragraph 70 and 71 of the full bench judgment of this court in Susmita Saha Dutta v. The Union of India & Ors., in WPA(P) 142 of 2021.

7. The learned Counsel has submitted that a prayer for omnibus compensation has been claimed against a regulatory body without there being an investigation with regard to any negligent conduct on the part of the Election Commission.

8. Mr. Dattar has submitted that election commission cannot be held responsibl