'Argument In Frustration' : Calcutta High Court Rejects West Bengal's Allegations Of Bias Against NHRC Committee In Post-Poll Violence Case

The Calcutta High Court on Thursday rejected the West Bengal State government's contention that there existed a 'reasonable apprehension of bias' against members of the NHRC committee who had been tasked with the responsibility of collating complaints pertaining to allegations of post poll violence in the State.

During earlier hearings, senior advocate Abhishek Manu Singhvi appearing on behalf of the Director-General of Police, (DGP) West Bengal had vehemently argued that the constitution of the NHRC committee was 'inherently biased and politically motivated'. In this regard, the senior counsel had made a reference to the committee member Atif Rasheed who had previously contested elections on behalf of the BJP. It was also pointed out to the Court that Atif Rasheed had uploaded an interview with a Superintendent of Police on his Twitter handle on July 9 which indicates that a determination regarding the allegations of post-poll violence had already been made even before the submission of the NHRC committee report. It was further alleged that other committee members such as Rajulben L. Desai and Rajiv Jain (former Director of the Intelligence Bureau) also had distinct affiliation with the BJP.

It had been further contended by the senior counsel that once a 'reasonable likelihood of bias' is established, the entire report of the NHRC committee must be vitiated. In this regard, reliance had been placed on Supreme Court judgments in A.K. Kraipak and others v. Union of India and others and Badrinath v. Government of Tamil Nadu.

However, on Thursday Acting Chief Justice Rajesh Bindal in the lead judgement rejected such a contention of bias by observing,

"In fact the entire effort seems to be to misdirect the issue and delay the proceedings. It seems to be an argument in frustration, where on the core issue the State has been found on a wrong foot."

Delay in raising allegations of bias against members of the NHRC committee

The Court observed that allegations of bias against members of the NHRC committee had been raised much later in the proceedings. Allegations of bias were raised only after the NHRC committee had already submitted its final report and 'the conduct of the state and the pleas raised by the State were found to be false', the Court noted.

Enumerating further Justice Bindal observed,

"This court had directed constitution of the Committee vide order dated June 18, 2021. The members were nominated by the Chairperson of NHRC on June 21, 2021.No objection was raised by any one. An application was filed by the State for recalling of order dated June 18, 2021 vide which Committee was directed to be constituted. The application was dismissed on June 21, 2021 but no such argument was raised. It was not raised even when the committee started working on field. The Committee filed interim report in Court on June 30, 2021 and order was passed by the Court. No issue was raised"

NHRC committee consisted of 9 members hence allegations of bias against 3 members immaterial

Justice Bindal further observed that 'three members against whom allegations are sought to be made were not the only members in the exercise of collection of facts from the field.' He proceeded to observe that the Committee consisted of 9 members having wide experience in different fields.

"Two were from the State, namely Member Secretary of the WBSLA and the Registrar of the WBSHRC. Besides this there were different sub-committees constituted for visits to different places in the State", it was further opined.

Committee only collated information, no final recommendation made that could allude bias

"Another reason for which the objection deserves rejection is that the members of the committee had only collected information from the field, collated the same and presented before the Court", the Justice Bindal observed. He further remarked that the judgements relied upon by the State government do not hold ground since in the instant case, the 'issue is not of selection of any candidate for service where recommendation may be final. Here committee was constituted for collection of information from the ground as the allegation against the State was that the police was not recording the FIRs for the crime and no action was being taken'.

Allegations of bias not material since other documents apart from the Report also considered

Remarking on the ambit of powers conferred upon the NHRC committee, Justice I.P Mukerji in his concurring judgment noted that the 'Committee constituted by the National Human Rights Commission is not to be treated as a Tribunal or a Commission. It is to be equated with a team of Special Officers appointed on the direction of this court.'

He further observed that the allegations of bias against the Committee is not material because the Court had considered 'not only the report of the Committee but other materials as well and arguments of learned Counsel based thereon'.

Inclusion of offences 'completely unrelated to post poll violence' in Report not significant in number

Justice Soumen Sen opined that he agrees with the submissions of Senior Advocate Singhvi that temporal and spatial limits must be imposed while taking note of complaints pertaining to post poll violence. However, he observed that given the time limitations, it would be unfair to attribute bias to committee members on the basis of their findings.

"I have also come across few instances where boundary disputes or snatching or other kind of offences completely unrelated to post poll violence found place in the report filed by the fact finding committee. However, such instances are not significant in number and given the time constraints I think it would be unfair to impute biasness against the members of the fact finding committee who otherwise have done a commendable job in collecting and compiling complaints", Justice Sen opined further.

Considering the political antecedents of Rajulben Desai and Atif Rashid, their inclusion in the Committee should have been avoided

Justice Subrata Talukdar observed that inclusion of Committee members such as Rajulben L. Desai, Atif Rashid and Rajib Jain does not vitiate the report of the Committee. He however acknowledged that their inclusion should have been avoided.

"I felt that having regard to the antecedents of Rajulben Desai and Atif Rashid the inclusion of the said two members could have been avoided as it might raise reasonable likelihood of bias. However, having regard to the fact that the decision of the committee is unanimous and we are accepting the said report only for the purpose of relying upon data disclosed in the report and the information gathered by the member of the committee during spot visits the inclusion of the said two persons in my view cannot be considered to be one single drop to taint the whole glass", Justice Talukdar concluded

Case Title: Anindya Sundar Das v. Union of India and other connected matters

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