My Elder Brother Is BJP Spokesperson, It Is My Duty To Tell: Calcutta High Court Judge In Mamata Banerjee’s Election Petition; Her Lawyer Expresses Full Faith In Bench

Prior to entering into the merits of an election petition filed by the Former Chief Minister of West Bengal, Mamata Banerjee, challenging the election of current Chief Minister Suvendu Adhikari from the Bhabanipur Assembly Constituency, Justice Gaurang Kanth of the Calcutta High Court made a disclosure in open court that his elder brother serves as a national spokesperson for the Bharatiya Janata Party (BJP).

Emphasizing that full disclosure was his duty to avoid any future concerns regarding judicial proprietary, Justice Kanth offered to address any potential conflict of interest before proceeding with the matter.

However, appearing on behalf of Mamata Banerjee, Senior Advocate Kalyan Kumar Bandopadhyay categorically declined the necessity of a recusal, reaffirming absolute confidence and respect in the independence of the judge and the integrity of the bench.

The Bench of Justice Gaurang Kanth said, "Mr. Banerjee, before we get into the merits of the matter, I want to make it clear that my elder brother is the national spokesperson for the Bharatiya Janata Party. That might be of some concern as far as this petition is concerned. I will hear it only after full disclosure so that you don't have any issues later on."

Senior Advocate Kalyan Kumar Bandopadhyay said, "I have all confidence and regard for your Lordship."

Justice Kanth added, "It is my duty, Mr. Banerjee."

An election petition was filed under Sections 80, 80A and 81 read with Sections 100, 101 and 123 of the Representation of the People Act, 1951, challenging the election of Chief Minister of West Bengal Suvendu Adhikari as the returned candidate from 159-Bhabanipur Assembly Constituency, where polling was held on April 29 2026 and the result was declared on May 04, 2026, on allegations of corrupt practices, illegal deletion of voters from the electoral roll, irregularities in the counting process and material non-compliance with the provisions of the Constitution of India, the Representation of the People Act, 1951.

Senior Advocate Kalyan Kumar Bandopadhyay responded, "Yes, my Lord has said it. And in fact, since your Lordship has mentioned it—I had been told by some other persons, but I said I am not concerned about it. I know my judge. I know him very well. I am not appearing in just one matter before him; I have done earlier matters. Whether I lost or won, that is a different issue altogether. But my confidence and my respect for you as a judge is not to be determined by any other factor. I have confidence in the judiciary, and I believe this. I have also been 45 years in the profession, and 25 years in parliamentary democracy. I believe the Indian judiciary can be independent only when a judge is independent."

Justice Kanth replied, "It was my responsibility."

Bandopadhyay then submitted, "My Lord, I have seen your Lordship. For a number of days, I have appeared before your Lordship. Sometimes I have lost; it doesn't matter to me. My Lord is one of the most gentlemanly judges of the Calcutta High Court. And I feel that no face is a factor to your Lordship, whether it is any of your relatives or anyone else. Absolutely, if your Lordship feels that you will not be prejudiced by any of your relatives' conduct, a judge is never prejudiced by any of this. That is why I am telling your Lordship, I have all confidence in you."

Justice Kanth remarked, "We are here to dispense justice. It doesn't matter to us, but it was my duty."

Bandopadhyay added, "To me, it will be a very dangerous day when I start to disbelieve a judge; rather, I would have to take retirement from the profession. If I start to disbelieve, it will be a true disaster for the judiciary...Now, that is the first ground I have addressed. The second ground is favoritism. The Returning Officer—who was the Returning Officer in the 2021 Nandigram election—is the same man serving as the DEO (District Election Officer). At that time also, my client lost, and there were a number of complaints against that RO. That was also the subject matter of another election petition."

It was alleged that a substantial number of electors were unlawfully deleted from the electoral rolls and that the Returning Officer was appointed despite an alleged conflict of interest, and that serious irregularities occurred during the counting process on 4th May 2026, resulting in the exclusion of the petitioner’s counting agents from the counting hall and causing prejudice to the petitioner. It has further been contended that the result of the election process has been materially affected by the aforesaid acts and omissions.

It was argued that these acts, omissions, and material non-compliance with the provisions of the Constitution of India and the Representation of the People Act, 1951, materially affected the final outcome of the election. Consequently, by way of interim relief, the petitioner sought urgent directions for the preservation of the CCTV footage of the counting centre, the Electronic Voting Machines (EVMs), and the Voter Verifiable Paper Audit Trail (VVPAT) machines.

The Court observed that at the preliminary stage, it was required to examine the maintainability of the petition solely on the touchstone of Section 86(1) of the Representation of the People Act, 1951. It noted that this statutory scrutiny was strictly confined to verifying compliance with Sections 81, 82, and 117 of the Act, without delving into the merits of the allegations. Upon perusing the record, the Court observed that the petition was presented within the limitation period, the petitioner possessed the requisite locus standi, all necessary parties were duly impleaded, and the security deposit requirements were fulfilled.

Regarding the interim measures, the Court observed that the preservation of CCTV footage, EVMs, and VVPAT machines stood on a separate footing as they constituted crucial material and electronic evidence. It noted that electronic data was highly susceptible to routine overwriting, and a failure to protect these materials would cause irretrievable loss of evidence, whereas their preservation would cause no prejudice to the respondents.

The Court held that the election petition prima facie complied with all statutory requirements and found no ground to dismiss the same under Section 86(1) of the Act.

"This Court is, therefore satisfied that a case has been made out for immediate preservation of the aforesaid materials pending adjudication of the election petition...Accordingly, the aforesaid CCTV footage, EVMs and VVPAT machines shall not be erased, overwritten, destroyed, tampered with, transferred, re-deployed, opened or otherwise dealt with in any manner whatsoever without the leave of this Court", the Court said.

Adverting to the guidelines issued by the Election Commission of India and the necessity of preserving evidence, the Court directed that the subject CCTV footage, EVMs, and VVPAT machines should not be erased, overwritten, destroyed, tampered with, or otherwise dealt with in any manner without the express leave of the Court.

The Court directed, "The CCTV footage recorded at the counting centre situated at Sakhawat Memorial Government Girls’ High School, Kolkata on 4th May, 2026 including footage from all cameras installed inside and outside the counting hall;...All EVMs and Control Units as well as Ballot Units used in all polling booths of the said 159-Bhabanipur Assembly Constituency; and (c) All VVPAT machines used in the said 159-Bhabanipur Assembly Constituency."

Lastly, the Court directed the department to serve notice upon the respondents and made the matter returnable after three weeks.

Cause Title: Mamata Banerjee v. Suvendu Adhikari and Ors. [EP/9/2026]

Appearances:

Petitioner: Senior Advocate Kalyan Kumar Bandopadhyay, Advocate Suman Sengupta, Advocate Amit Kumar Das, Advocate Sirsanya Bandopadhyay, Advocate Arka Kumar Nag, Advocate Rahul Kumar Singh.

Click here to read/download the Order