Sr Adv Kapil Sibal: This kind of proceeding has not been seen before any court compared to what happened in Kolkata. The elections was in 8 phases. You have to decide what is post poll violence. ECI transfers officers etc
Justice Saran: So it has to be seen till when ECI is in control for post poll violence
Sibal: It is till Chief Minister takes oath. This is a legal issue. ECI is in control of police and law and order. This issue has not been decided before
Sibal: If CM took oath on May 5 and if something happens in June, can it be called post poll violence?
Justice Saran: Yes, it's like something happens in December and then also it's post poll.
Sibal: The case was taken up by 5 judges and the first interim order was passed on June 18 in terms of which HC said that they request NHRC chairman to constitute a committee to look into these cases.
Sibal: According to us the committee had members who are openly affiliated to ruling party. There were 6 members
Justice Saran: How many were objectionable?
Sibal: The lead three.
Sibal: What has to be seen that in a federal structure where there are two parties in centre and state and there is an electoral battle of ideologies then what is the duty of the court to allow such a committee to work on something that it ordered it to
Sibal: The fourth broad issue is that in the context of administrative law there is a concept of bias. We are now dealing with criminal law which is according to me far more important as lives of people are dependent on probe.
Sibal: If you allow forces of probe on a particularly ideologically bent members then there creeps in bias. The principle is not of actual bias but the fear of bias.
Sibal: The only way that facts can be discovered in respect of any incident specially in criminal investigation is investigating and there is no other way facts can be discovered.
Sibal: When FIR is made, to see if complaint is true or not is through CrPC. In context of violation of human rights, the human rights act itself sets out a procedure for arriving at conclusions in respect of violation of human rights
Sibal: In this case neither was followed. The committee which was constituted to probe had no power to investigate. How do you gather facts without investigation?
Sibal: There are seven members of committee and not six. Three are objectionable. In an earlier judgment it was held that even if one person is biased then also the committee falls through.
Sibal: Here the principle is of apprehension of bias and not actual bias.
Justice Saran: How was team constituted ?
Justice Aniruddha Bose: were these members a part of NHRC or strangers to any statutory authority
Sibal: Like one Rajeev Jain, Rajubain Das etc
Sibal: One member even had his twitter bio affiliated to BJP. One was former head of IB. one was member of legal services authority member
Justice Saran: Yes Rajeev Jain name struck as former IPS officer
Sibal: When you are interpreting Entry 2 of List 2 and transferring probe to an agency of the union, the principle which had to be seen is principle of natural justice to state. You don't allow state to put forward it's case
Justice Saran: There are some cases filed by private parties also and notice was issued. Mr Mahesh Jethmalani please give the list of cases to the court master during lunch recess and give a copy to Mr Sibal.
Sibal: The point is you castigate the state, you don't tell the state what probe is being conducted and how many arrests were made and you give 7 days time to file a reply when thousands of cases have been filed.
Justice Saran: sum and substance is natural justice of state to HC
Justice Bose: but you were a party in HC. You explained your stand in HC through an affidavit, you say this affidavit was not concerned in final judgment?
Sibal: Yes
Sibal : Under Article 226, can the court order an en masse transfer of cases? If you find agency is biased then it's ok, but just because you recieve a number of cases you can't say we will transfer all. There is no concept of en masse transfer
Sibal: This is the reason why some dead is noted as alive and one is vice versa. I will show you how court did not even consider the probe by police
Justice Saran: So this is the lucky 7 pointers
Sibal: My friend will add 6 more to make it unlucky 13
Justice Saran:That depends
