Appointment of poll Observer ‘illegal’, EC receives complaint

KOLKATA: The Chief Election Commissioner has received a complaint on Monday from an advocate who has expressed concern regarding the arbitrariness of the Election Commission over the appointment of Central Police Observer Vivek Dubey and Ajay V Nayak as the Special Observer for Bengal in the ensuing Lok Sabha elections.

The letter addressed to the Chief Election Commissioner highlights that the EC is empowered to nominate an Observer under Section 20B of the Representation of the People Act, 1951 and states: "The Election Commission may nominate an Observer who shall be an officer of the government to watch the conduct of the election or elections in a constituency or group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission."

He states that it is "abundantly clear from the provision above, that a person who may be nominated as an Observer, 'shall be an officer of the government'. The phrase 'shall be' as used in Section 20B of the Act is mandatory and has been used in the present tense and therefore, a retired IPS officer does not fulfill the mandatory requirement as laid down under Section 20B of the Act."

The letter further mentions: "Hence, under Section 20B of the Act serving officer of the government can only be appointed as an Observer and it is unequivocally clear that a retired officer is barred from being appointed as an Observer since he ceases to be an officer of the government after his retirement."

Under Section 20B of the Act, a serving officer can only be appointed as an Observer

Vivek Dubey and Ajay V Nayak who were nominated by the Election Commission have retired from government services in 2015 and 2018 respectively. They "cease to be an officer of the government and hence their nomination is patently illegal, null and void and contrary to the provisions of the Act".

In such a circumstance, all actions taken by them are "illegal, null and void ab-initio and hence any and all actions taken in pursuance of Vivek Dubey and Ajay V Nayak's recommendations are also void ab-initio and ought to be reversed and/or set aside immediately." The advocate has demanded immediate steps to "remove Vivek Dubey from the position of Central Police Observer for the states of West Bengal and Jharkhand and Ajay V Nayak from the position of Special Observer for the state of West Bengal and to immediately reverse/set aside all actions taken pursuant to their recommendations by the Election Commission of India".