NHRC Committee Members Have Political Affiliation; Procedure Not Followed In Making Report : Sibal To Calcutta High Court In Post-Poll Violence Case

To this, the Bench led by Acting Chief Justice Rajesh Bindal enquired from the senior counsel, "will all procedures under the Act apply in the present case since the NHRC committee had been constituted by the Court?"

In response the senior counsel submitted that the High Court had not set up the NHRC committee. The High Court had instead asked the NHRC to constitute a committee which the NHRC can only do by exercising its powers under the 1993 Act.

"How are your Lordships going to assess the veracity of the statements made by the NHRC committee? Shouldn't the procedure under the Act be followed", the senior counsel further added.

Further, opining on the evidentiary value of the NHRC report, the senior counsel referred to Section 15 of the 1993 Act which state that evidence by the NHRC cannot be submitted as evidence before a criminal court.

Whether the report can be termed as a 'NHRC' report if provisions of the 1993 Act were not followed?

Addressing the contentions of the senior counsel, the Bench observed, "This was a committee appointed by the Court. Why is it necessary to equate the Committee with the National Human Rights Commission (NHRC)? The Committee was only a fact finding committee"

In response senior counsel Sibal added, "Your Lordships then this is not a 'NHRC' report. It is only a report of the Committee". He also questioned as to what procedure had been followed by the committee if the procedure under the 1993 Act had not been complied with.

The NHRC committee report has given an 'opinion' not just collated information

The senior counsel submitted before the Court that the NHRC committee report had 'castigated every state machinery' instead of just compiling complaints as ordered by the Court.

"I am sure the Bench did not require the committee to submit such a report if the committee was only supposed to be a fact finding committee", the counsel contended.

To this the Bench observed, "The Court in its order had entrusted the committee to come up with recommendations. Should the committee have defied the Court's orders?"

"Your Lordships are entrusting powers to the Committee which even the NHRC does not have under the 1993 Act", the senior counsel submitted in response.

Reliance was also placed by the senior counsel on Section 16 of the 1993 Act that state that in case a person is to be prejudicially affected, he or she has to be provided an opportunity of hearing by the NHRC.

He also referred to the Supreme Court decision in Bandhua Mukti Morcha wherein the Supreme Court had asked the concerned fact finding committee to only collate information. The responsibility to investigate had continued to persist with the Haryana government in the particular case, he added.

Members of the NHRC committee have abject BJP affiliation

Senior counsel submitted that members of the committee have close affiliations with the BJP. He referred to the committee member Atif Rasheed who had contested elections on behalf of the BJP. The counsel also read out tweets from Atif Rasheed's twitter handle which show evident political bias.

"How can your Lordships depend on the findings of such committee members? Could your Lordships have ever imagined that the NHRC will appoint such members?" he added further. He also submitted that it is established procedure that even if one member of the committee is tainted, the entire committee must be dismissed.

"The NHRC cannot appoint BJP members and then say that the matter should be transferred to the CBI", senior counsel Sibal concluded.

The Court will continue hearing tomorrow.