West Bengal Post Poll Violence- Calcutta High Court Reserves Judgment

Calcutta High Court on Tuesday reserved orders on a batch of petitions pertaining to the alleged post-poll violence in the State of West Bengal.

A 5 Judge Bench comprising Acting Chief Justice Rajesh Bindal and Justices I.P Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar heard concluding arguments from the concerned parties on Tuesday. The West Bengal government made extensive submissions following which the submissions were responded to by the counsels of the petitioners.

The Union also submitted before the Court that it was willing to extend the services of central investigating agencies such as the CBI (Central Bureau of Investigation) and the NIA (National Investigation Agency) pursuant to the Court's orders. 

Submissions on behalf of the State of West Bengal:

NHRC committee members were politically motivated

Senior Advocate Abhishek Manu Singhvi appearing on behalf of the Director-General of Police, (DGP) West Bengal submitted before the Court that the constitution of the NHRC committee was inherently biased and politically motivated. The senior counsel 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.

"The committee report has been filed on July 13 and the approach of the members of the committee was already evident on July 9", senior counsel Singhvi alleged.

The senior counsel further submitted that Rajulben L. Desai, another committee member also has a distinct affiliation with the BJP. In addition, Rajiv Jain another committee member was the former Director of the Intelligence Bureau.

As a result, the senior counsel submitted there exists a 'reasonable likelihood of bias'. He also made a reference to the Supreme Court decision in A.K Kripak v. Union of India wherein the Apex Court had clearly laid down that even if a likelihood of bias is indicated against anyone committee member, the entire proceeding must be vitiated.

"One single drop taints the whole glass. This kind of a composition seriously taints the entire process as well as the report", counsel Singhvi alleged.

 NHRC report contains premeditated complaints 

Senior Advocate Manu Singhvi further contended that the report submitted by the committee is riddled with cases that had been filed before the declaration of the elections results. The senior counsel then proceeded to apprise the Court of various examples of such premeditated complaints.

"The whole approach is causal and premeditated. Almost as if readymade complaints were kept ready", the counsel alleged. Thus it was contended that such a report cannot be relied upon due to the patent infirmities pointed out.

Opining further on the ambit of post-poll violence cases, the senior counsel submitted that only those incidents that had taken place in the 'immediate aftermath of the election result' must be taken into consideration. Thus complaints must have a nexus to the election result and there must be 'temporal and spatial limits' imposed while taking note of complaints, the senior counsel argued.

Discrepancies between the English translated version of statements and the originally recorded statements of victims

Senior counsel Singhvi also pointed out to the Court that there exists huge discrepancies in the original Bengali statements filed by the victims and their subsequent translation made by the committee. Pointing out one such alleged 'gross exaggeration', the counsel submitted that the committee in the English translated version of a statement had inserted the phrase 'TMC goon' which did not find any mention in the original statement recorded.

Advocate General Kishore Datta further apprised the Court of an instance wherein the original complaint pertained to an incident regarding the snatching of a gold chain, completely unrelated to post poll violence. However, in its subsequent translated version, the committee had recorded that the concerned complainant had alleged assault by TMC workers wherein his turban had been forcefully removed. He also submitted that in a lot of cases registered by the committee, the accused had been labelled as a victim.

Further, it was submitted that the NHRC committee in its press note had mentioned that it had visited various affected areas. Objecting to such a press note, the senior counsel contended, "the press note has never been released. Also, what are the criteria for choosing to visit only those specific locations?"

The NHRC committee report cannot be relied upon

Senior counsel Singhvi submitted that in light of all the infirmities pointed out, the report cannot be relied upon let alone be trusted in any manner. "Your Lordships are being suggested that merely because a statutory committee is involved, its report must be given weightage. However, it is simply an ad-hoc body. It's report also cannot be trusted", he further submitted.

Dates not specified in most complaints registered by the NHRC committee

Senior Advocate Soumendra Nath Mookerjee appearing on behalf of the DGP, West Bengal pointed out to the Court that out of the 1979 complaints registered by the NHRC committee, in 864 complaints no date has been mentioned which are nearly 43.65 per cent of the complaints. Further out of the 72 rape cases registered by the committee, 9 cases do not have dates mentioned and 4 cases belong to the period between May 2 and May 5 (when the new state government had not yet assumed power).

268 Suo moto cases registered by the State police

Advocate General Kishore Datta apprised the Court that in addition to the complaints forwarded to the State police by the NHRC committee, the police had suo moto registered 268 cases. The Advocate General also pointed out instances wherein suo moto FIRs had been lodged by the police even before the Court took cognisance of the issue.

"It is not that the police was completely inactive. Even without the NHRC's reference of complaints, the police had registered FIRs", Advocate General Datta submitted.

To this, the Bench questioned the Advocate General, "from Day 1 your stand was that there was no violence. So what do these complaints indicate?"

In response, the Advocate General submitted that 45 per cent of the cases pertained to the period between May 2 and May 5 when the new State government was yet to assume power. He also mentioned that there were some instances of violence but the cases reduced drastically with time. The Advocate General also clarified to the Court that the suo moto cases registered by the State police also included serious offences.

Submissions on behalf of the Union:

Additional Solicitor General (ASG) Y.J Dastoor submitted before the Court that the Union was ready to extend the services of central investigating agencies such as the CBI and the NIA pursuant to the directions of the Court. He also contended that such central investigating agencies can be called upon to investigate allegations pertaining to serious offences such as rape, murder as recommended by the NHRC committee. It was also submitted that in case an SIT (Special Investigating Team) is constituted, the Union would be ready to extend the services of some prosecutors as well.

To this, the Bench observed, "The recommendations of the NHRC committee have become controversial now because of the contravention of the 1993 Act". It further questioned the ASG,

"At this point of time, all the FIRs are with the State. Is this now an appropriate time to transfer all the complaints to a central agency from the State police?"

In response, the ASG Dastoor submitted that the Union was before the Court in a limited capacity and that it was not making any remarks on the merits of the case. As a result, the submission was restricted to the fact that the services of central agencies could be employed as per the Court's directions.

Submissions on behalf of the petitioners:

Need for the constitution of an independent SIT

Advocate Priyanka Tibrewal submitted before the Court that many people had been displaced owing to the post poll violence and they have still not been able to return which indicates that violence is continuing in the State. She also advocated for the constitution of an SIT to probe the allegations. Similar concerns were advocated by senior counsel Bikash Ranjan Bhattacharya and Advocate J. Sai Deepak.

Factum of violence cannot be disputed

Senior Advocate Bikash Ranjan Bhattacharya submitted before the Court that the alleged bias of the committee members does not vitiate the findings of the committee that there was indeed post-poll violence. Further, the senior counsel submitted,

"The Election Commission is not responsible for the general law and order of the State. The State has shirked responsibility by stating that the new government came to power only on May 5."

Further, Advocate J. Sai Deepak also contended that mere procedural irregularities cannot be banked upon to circumvent allegations of post-poll violence. He also submitted that time and again it has been evident that the State machinery is not interested to act on the complaints of victims unless there is external intervention.