Election Commission's Article 324 powers subject to statutory procedures for election offences; cannot issue blanket directions against 'trouble-makers' for voter intimidation, violating Article 21 due process.

JUDGMENT

DICTATED BY SUJOY PAUL, CJ.:

1. Parties are represented through their respective learned counsels.

2. Heard on admission and interim relief.

3. Mr. Bandyopdhyay, learned senior counsel appearing for the petitioner by drawing our attention to the order of Police Observer in the office of the Chief Electoral Officer (CEO), West Bengal bearing no.5607-Home (Elec.) dated 21.4.2026 (annexure P1) filed with supplementary affidavit submits that in the said memo it is mentioned that “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”. It is submitted that the list enclosed contains the names of about 800 persons and many of these persons are elected representatives such as Councilors, Members of Panchayat Bodies and Municipalities, M.L.A.s and M.P.s. It is submitted that while recording a finding in first paragraph of the impugned order dated 21.04.2026 directions are given to take action against those persons. By placing reliance on Article 21 of the Constitution of India, he contends that no citizen can be deprived of his right of personal liberty except according to the procedure established by law. By placing reliance on various provisions of Chapter – IX of B.N.S. and certain provisions of B.N.S.S., it is submitted that for offences related to Election, specific statutory procedure is prescribed. The authorities under the said statutory procedure are required to apply their independent mind and discretion. Similarly, Section 129 to 134 of the Representation of Peoples Act, 1951 (in short, R.P. Act, 1951) offences relating to election are prescribed. The statutory authorities under the said provisions can apply their independent mind and in the event of any offence, take appropriate action. For the same purpose, Section 35 of B.N.S.S. was relied upon.

4. By referring to Article 324 of the Constitution, it is urged that Election Commission does not have any unbridled powers. It can exercise its power provided the area is not covered by any other legislation or enactment. In support of his submission, Mr. Bandyopadhyaya places reliance on 1986 (1) SCC 133 (Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors.) to contend that if exercise of power is alien/foreign to the purpose of the enactment, it amounts to malicious exercise of power. He submits that ECI does not have any such power to issue the impugned general direction. He has taken pains to contend that the expression “trouble-maker” is a creation of ECI and is not defined in any statute. ECI has no authority, jurisdiction or power to call certain persons “trouble-makers” and issue direction to the police authorities to take steps against them.

5. Lastly, by placing reliance on 2026 SCC Online SC 162 : ( Satender Kumar Antil vs. Central Bureau of Investigation ) it is urged that arrest by a police officer is based on his discretion which facilitates only him to conduct proper investigation, collect evidence and take action in accordance with law. Thus, the police authority must ask the question as to whether arrest is necessary or not before undertaking the said exercise. The said judgment is highlighted to canvas that the police authorities are free to take action against persons committing offences by identifying such persons. Therefore, the impugned blanket direction is not sustainable.

6. Mr. Bandyopadhyay submits th