In verdict on Bengal post-poll violence, EC gets a rap too

Penning his observations in a concurring judgment on handing over of the investigation into heinous crimes in post-poll violence in West Bengal to the Central Bureau of Investigation, Justice IP Mukerji said the allegation of bias against the National Human Rights Commission’s committee was not material.

Justice Mukerji of the Calcutta high court observed the committee constituted by the NHRC had only power under the order of the five-judge bench to report on facts as gathered by them on investigation.

"The allegation of bias against the committee is not material because this court has considered not only the report of the committee but other materials as well and arguments of learned counsel based thereon," Justice Mukerji observed in the concurring judgment passed by the bench on a clutch of PILs seeking independent probe into alleged post-poll violence and compensation to victims.

"Therefore the part of the report expressing opinion, making recommendations etc is non-est in the eye of law," he observed in the judgment delivered on Thursday.

The bench, comprising Acting Chief Justice Rajesh Bindal and justices I P Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, ordered a CBI probe into heinous crimes like rape, attempt to rape and murder and formation of an SIT comprising three senior IPS officers into other cases of alleged post-poll violence in West Bengal.

In his observations, Justice Mukerji said the submission of the Election Commission is absolutely right that conduct of elections was with it, but the administration was with the government.

The government said that the EC was in charge up to May 5

"The Election Commission, in my opinion, is theoretically correct. But, it is also true that the Election Commission had directed the administration to transfer officials with administrative duties and post them according to its direction at the time when it was in charge of the election.

"If offences had occurred as a consequence of the polls, it was also the duty of the Election Commission at least to direct or advise the administration to register the complaints which it did not," Justice Mukerji observed.

He observed that between the polls and assumption of office by the new government, the Election Commission should have played a more positive role in directing the administration to register the complaints.

"If the offence is established, the wrong-doers have to be brought to justice. Only then will the entire system be seen as fair, just and transparent by the ordinary people," the judge said.

Justice Harish Tandon, in his observations, said that it is a salutary function of the court to protect their rights guaranteed under the Constitution.

"The court cannot be a mute spectator nor should be apathetic to the voices of the persons who felt aggrieved but must rise to an occasion to protect such rights," he observed.

"There may be cases which are not relatable to post-poll violence but the persons have been deprived of their rights being not addressed through a well-recognised system in place and therefore there is no fetter on the part of the court to entrust investigation to impartial, independent agency constituted for the purpose of rendering justice to deprived persons," Justice Tandon said.

Justice Soumen Sen, in his concurring judgment, said, "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."

He said that in his view the inclusion of Rajulben Desai, Atif Rashid and Rajeev Jain in the committee does not vitiate its report.

"Although 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," Justice Sen observed.

"Although the fact-finding committee has made scathing remarks and made recommendations against politicians and police officers I am of the view that such remarks and recommendations were uncalled for and to that extent the committee has transgressed its limits," he said.

Opposing the findings and recommendations of the NHRC committee report, senior advocate Abhishek Manu Singhvi, representing the state DGP, had claimed during submissions that it was erroneous and biased.

Claiming that a few members of the seven-member committee had links with the Bharatiya Janata Party, he prayed that it should be rejected by the court.