Law Of Ruler Instead Of Rule Of Law: NHRC Signals Police Complicity & State Apathy, Recommends CBI Investigation In West Bengal Post Poll Violence

According to the directions of a five-judge bench of the Calcutta High Court, the National Human Rights Commission (NHRC) constituted a committee for examining complaints filed by persons displaced during post-poll violence in West Bengal. Justice Arun Mishra, the Chairperson of NHRC, constituted a six-member team headed by Ravi Jain to examine all cases of post-poll violence received by NHRC and the WB State Legal Services Authority. The Committee was also to visit the affected areas and submit a report to the Calcutta High Court

On July 13, 2021, the NHRC submitted a 50-page report to the Calcutta High Court detailing modalities followed, nature of the enquiry, number and nature of complaints, findings of the spot visits and camp-sittings.

The report by the NHRC categorically at the very outset places the responsibility of the post-poll violence that gripped West Bengal on the State Government, terming it to be 'retributive violence by supporters of the ruling party against supporters of the main opposition party. In its 16 day investigation in the various districts of West Bengal, it examined the complaints or incidents related to post-poll violence in the State of West Bengal and visited the affected areas and interacted with the victims and other aggrieved petitioners/complainants.

Apart from the earlier constituted 6-member team, an operational team consisted of DG (Investigation), one SSP, two Assistant Registrar (Law), 09 DSPs, 13 Inspectors, ten constables, 2 JRCs and other secretarial staff conducted field visits in different areas of the State. The team conducted 311 spot visits in the given duration of their stay.

Major Findings:

Complaints Received: The NHRC examined a total of 1979 complaints regarding post-poll violence covering 15,000 affected victims received at NHRC (1650), WBSLSA (315), WBSHRC (18), NCW (57) and local sources. The Commission has analyzed the complaints district-wise and noted,

"It shows that very large number of complaints have been received from districts Cooch Behar, Birbhum, Purba Bardhaman, North 24 Parganas, South 24 Parganas and Kolkata while within the administrative districts the most affected Police districts are Baruipur PD, Bashirhat PD, Barrackpore PC and Diamond Harbour PD."

Data Sought from Chief Secretary & DGP, West Bengal: The Commission also sought extensive five-point details from the Chief Secretary & DGP, WB, including crime-wise district-wise nature of complaints, DD entries, MLCs of injured, preventive detention action, details of losses/property damaged, orders under 144 CrPC, amongst other details(page 10). However, after several reminders, the report mentions that the Government of West Bengal responded in a 'piecemeal' manner. It notes,

"Still, the information sent is not complete, and many vital columns have been left blank. The information with regard to point B is not received from the Chief Secretary of West Bengal to date despite sending three reminders."

An analysis by the NHRC of the data received from the State of West Bengal shows that a total number of 1934 complaints were lodged in various police stations of West Bengal, of which 1168 translated into FIRs naming 9304 accused. However, it goes ahead to show that only 1345 accused have been arrested so far, of which 1086 have been enlarged on bail, while the rest remain in custody.

The maximum number of cases of arson, vandalism, loot, damage to public or private property (940) followed by threats or criminal intimidation (562), grievous hurt or incapacitation (391), murder/homicide (29) and attempt to rape or sexual assault and molestation (12).

It emphasizes the contrasting difference between the large-scale violence in the State and the 'abysmally low' cases officially registered by Police, the number of arrests made. It further observed that the cases are not being investigated on priority and, in many cases, sections invoked are not proportional to the gravity of offences that occurred. It notes,

"The statement given in the above table reflects that, out of 9,304 accused cited in the FIRs, only 1,354 (14 %) have been arrested and, out of these arrested, 11086 (80%) are already on bail. Thus, overall speaking, less than 3% of the accused are in jail, while 97 % are out in the open, making a mockery of the whole system."

The report signals police complicity, stating that they are acting in a biased manner under the influence. It also remarks that the State Police does not dare to take action against looming goons belonging to the ruling dispensation.

It states,

"The I/Cs of Police Stations have not even visited the places of many of the violent incidents, nor collected any evidence or recorded statements, let alone registering FIRs."

Spot Visits: Seven operational teams of NHRC conducted 311 spot-enquiries, prioritizing districts based on the gravity of the offence, intensity of cases, complaints of police collaboration, etc.

"The percentage of accused arrested out of those cited and the percentage of accused who are still in custody is abysmally low, which shows inept performance of local Police and there is no deterrence for criminal elements as seen from the above crime data."

It notes that in 311 spot enquiries conducted by the teams, in as many as 188 instances (60%), FIRs have not been registered by the Police. Even in the 123 cases where FIRS have been registered, in as many as 33 cases (27%), Police have resorted to dilution using milder sections of law.

It is also noted that during their spot visit, 2869 people/victims approached them with petitions requesting for enquiry and registration of cases, which is (900%) or nine times of the victims covered by the teams. It analyzed,

"To summarize, for 123 cases registered by the Police, there was another 3057 (2869+ 188) number of complainants/petitioners/victims, whose cases were either not registered by Police or cases were diluted or Police was not accessible to them, and therefore, they wanted NHRC teams to enquire into their issues."

It commented that the extent of burking and minimization of crime across the State could be well-imagined taking the sample of the above data.

Camp-Sittings: The camp-sittings were conducted three days, giving all complainants, victims, and petitioners to meet the enquiry committee members in person. On the first two days, a total of 1036 victims appeared in these camp-sittings, submitting 201 complaints of vandalism, assaults, threats, displacement, molestation of women and murder/death during the violence were reported. On the third day, the Registrar of West Bengal State Human Rights Commission presided over the camp-sitting, receiving 70 cases of post-poll violence.

Identification of Delinquent Police Officers & Notorious Criminals or Goons: The Enquiry Committee pinned responsibility on the police officers for the commissions and omissions, failing to perform its duties recommending strong deterrent action against a few of them. It submitted an illustrative list of a few Police officers whose performance was dismal on different parameters.

Based on the analysis of information collected from the spot enquiries, the Committee noted that criminals enjoying 'state patronage and support' were responsible for abetting, planning, organizing and even committing offences in a systematic and widespread manner.

An illustrative list of such notorious criminals/goons is also annexed to the report as submitted to the Calcutta High Court. The report states,

"Their exact culpability will be established through greater scrutiny of records, analysis of telephonic records and cross-verification of statements recorded and police station records. This will require some additional effort."

Recommendations:

The Enquiry Committee has given a comprehensive 29-point recommendation in conclusion to its enquiry conducted in the State of West Bengal. The recommendations are as follows:

a. CBI Investigation & Trial To Be Done Outside The State: The Committee recommended that all heinous cases, including murder, Unnatural Deaths, rape and grievous hurt, and complaints carrying these allegations, should be transferred to the Central Bureau of Investigation, a neutral agency for investigation. It also noted that the trial of the above cases investigated by the CBI should be held outside the State.

b. Court Monitored Special Investigation Team & Fast Track Courts: The Committee recommended the constitution of a court-monitored Special Investigation Team [SIT] consisting of senior supervisory IPS officers and others. As per the recommendation, the SIT must register and investigate cases expeditiously in a time-framed manner. It was also recommended that there be a wide publication of the SIT's contact details for easy access. It also provided a special team of Public Prosecutors to be attached to the SIT to monitor the quality of investigation, collection of evidence, placement of charge sheets in Courts, and to follow up the prosecution, trial in Courts to ensure convictions.

c. Monitoring Committee: The recommendations entail that a Monitoring Committee must be constituted to comprehensively monitor the implementation of the directions of the Calcutta High Court, 'give the apathy of the State Government'. It also has a 12-point suggestion as to the Monitoring Committee's mechanism, including the composition, functions, reporting lineage, objectives, etc.

d. Witness Protection Scheme & Protection To Women: The Committee recommended the State Government's formalization of a Witness Protection Scheme. Meanwhile, protection must be extended to the victims and witnesses who have suffered this organized violence irrespective of whether their FIRs have been registered or not. It also provided specific protection to women and victims of sexual assault.

e. Ex Gratia & Compensation For Damages: The Committee recommended for immediate assistance to victims to enable them to resume their normal lives in the form of ex-gratia, preferably from the Victim Compensation Fund. It recommends eligibility for payment of ex-gratia to all complainants in FIRs received by the Committee, without further enquiry. The further applications or complaints must be treated as application for such ex-gratia. It lays a categorization of five crtierias for grant of such ex-gratia including next of kin of deceased (Rs. 5 lakhs), survivors of sexual assault (Rs. 2 lakhs), victims of vandalism and grievous hurt (Rs. 1 lakh) and victims of simple injury (Rs. 50,000).

The report also recommends for compensation for damages suffered by victims and their properties. It suggests that all the District Magistrates should form one or more teams to assess the actual damage so  caused as a result of violence as a preparatory step towards granting them compensation for the damage suffered. 

f. Reinstatement & Rehabilitation: The report recommends the State Government to provide for immediate reinstatement and rehabilitation of people to their place of living and livelihood in a safe environment with necessary provisions of water, electricity, rations and medical supplies. It also recommends Police patrolling, static deployment, proactive policing, intelligence gathering, and preventive sections of law in affected areas. Static Pickets have been recommended for areas where five or more cases of post-poll violence have been reported.

For rehabilitation, the report suggests the conduction of skill development programmes encouraging the affected victims to start small businesses and extension of loans on soft-terms. It also recommends opening Special Care Homes for people who fled their areas due to the violence.

g. Proactive & Preventive Policing: The report states that the Police was found 'unprepared to handle the spate of incidents of violence. It recommends proactive and preventive policing techniques. It also recommends that the Standard Operating Procedures of Police handle such incidents of violence and lawlessness. It calls for a reexamination of the scheme of civil volunteers and a comprehensive study of manpower requirements of the Police. It refers to the decision of the Supreme Court in Prakash Singh v. Union of India recommended the State to take steps for police reforms, particularly for the composition of State Security Commission, Police Complaints Authority, Establishment Board, the appointment of DGP and fixed tenures of officers concerned.

h. Delinquent Government Servants & Reforms in Bureaucracy: The report calls for fixing accountability on state officials and action against the guilty. It refers to a list of delinquent police officers annexed, recommending strict disciplinary and legal action against them. It also recommends systematic reforms in the bureaucracy, enabling an ecosystem where 'rectitude and competence are given due recognition and 'their commitment is to the public and not the political master'. It further notes,

"Such reforms should insulate the bureaucratic machinery of West Bengal from being used by the party in power, as an instrument of oppression and suppression of people and subversion of democratic functioning."