Sep 28, 2021
Sibal: High Court had noted that affidavits will just go on even as state is denying facts. Which facts? Who established them. Now HC says since cases are large in numbers, NHRC to constitute a committee of which state legal sevices Authority's member secretary to be a part of it
Sibal: what is the remit of this committee ? How is a person prima facie responsible for the crime ?
Justice Saran: Here you want to say that examine here means investigate it and come back to court
Sibal: that they can't do since they dont have the power
Sibal: inaction of police was noted even without giving us an opportunity to make submissions. These are allegations and not facts.
Sibal: It is humbly submitted.. this is the proposition I have in respect of natural justice. In a federal structure, you want to investigate beyond list 2 and you pass an order.
Sibal: This is not right, this is not some individual, this is State. How do we make our submissions? Para 9, this Court may be pleased to grant an opportunity to the applicants to respond to the report.
Court: Let us see.. Where are the findings of the Court?
Sibal: Page 16 of the 18 June order, Para 13, Milords.. “The Complaints..”
Court: “Such action is missing” okay okay
Sibal: How do they come to these conclusions?!
Sibal: What happens then is, this is flashed all over the country. The reputation of the state is also at stake. You don’t give us an opportunity. You castigate us. We give a chart, you say its not supported by affidavit. This is not fair.
Bench takes a moment to discuss amongst themselves.
Court: Yes, Mr. Sibal. On the face of it, we think you have made out a case for issuance of notice. We’ll give them a short time to file a counter.
Court: How many Petitions are there? We’ll say.. In addition, you can serve them Dasti. Some of them are already there, Mr. Jethmalani is already there, I don’t know for who but he is there. Mr. Harish Salve was also seen on the screen some time back.
Court: None of the senior counsels want to appear in person!
Sibal: I’ll tell you why.. this is a much more efficient system. A lot fo young people in the country have benefited greatly from this system.
Sibal: A lot of young women who could never appear in court and now they are appearing from home. There are benefits and..
Court: Main disadvantage is that we don’t see you. When you all argue, we get to know conviction of arguments.
[ORDER] Issue notice. Fix on 7th.
Sibal: The CBI is carrying out investigation. All your Lordship may say is that the investigation be subject to the order..
Court: Mr. Sibal, we don’t need to say that.
Court: We just thought there is no point in hearing in totality. It is always a pleasure to hear all these senior counsels.. We’d like to hear.
Sibal: What is happening is that CBI is issuing notice to the police officers in the State.
Court: 7th we will definitely look into the matter, and we will hear the other side. Again, let the principles of natural justice that you are arguing, we should not pass an order without hearing the other side.
Sibal: Of course, all I’m saying is this is what is happening.
Sep 28, 2021
SC posts hearing on October 7. WB through Kapil Sibal told the court that HC went by allegations in PIL petitions and a biased report of the NHRC teams. Sibal said the state was not given an opportunity to present to HC the action it had taken on post-poll violence complaints.
Sibal said SC should order that CBI investigation should be subject to the outcome of WB's appeal. Sibal also said that CBI should not register fresh cases and issue summons to police officers.
Sep 28, 2021
As Supreme Court hears appeal by West Bengal Govt on post-poll violence through video-conferencing:
Sr adv Kapil Sibal: I must say this is a far more efficient system.
Justice Vineet Saran: For a handful of seniors it may be..But there are several others who think otherwise.
Sep 28, 2021
Supreme Court issues formal notices to petitioners before the Calcutta HC in the appeal filed by West Bengal Govt against order of CBI probe into post-poll violence. Union Govt, CBI also asked to respond. No interim order though. Next hearing on Oct 7.
Sep 28, 2021
Supreme Court issues notice in petition filed by State of West Bengal against Calcutta High Court order directing CBI investigation into post-poll violence cases of murder and rape. Matter to be taken up on 7th Oct next.
Sep 28, 2021
J. Vineet Saran orally to Sibal for West Bengal appeal against transfer of post-poll violence cases to CBI: On the face of it, you have made a case for issuance of notice. Let us see. We will give a short time for respondents to file counter
Hearing fixed on Oct 7
Sibal urges SC to stay future filing of FIRs by CBI.
J. Saran: We don't have to do it. It is only a week, nothing will happen.
Sibal says CBI is issuing notice to police officers in the cases.
J. Saran: You have argued about natural justice, we should not pass any order without hearing the other side.
Sep 28, 2021 Court room Exchange
West Bengal Post Poll case
Sr Adv Mahesh Jethmalani: Kapil, Will you take the day ?
Sr Adv Kapil Sibal for WB govt: Oh ya ya, tomorrow as well
Jethmalani: Are you serious?
Sibal: Yes, Yes
Jethmalani: The MF Hussain painting is in all its glory in your background
Sibal: I didn't know there will be video conferencing. So this was there from much earlier you see...
Sep 28, 2021
Sibal: Committee was not entitled to discover any facts. These facts were projected by petitioners and not established by the court. What facts are we talking about here? What is the basis of all this? We will show what steps were taken
Court to resume after lunch
Sep 28, 2021
Sr Adv Sibal submits the list of dates:
Sibal: A three member committee was formed by HC to monitor situation in Entally constituency. In June 4, HC observed that people other than from Entally can also lodge their complaints.
Sibal: On June 18, HC said filing of affidavits was lengthy process and thus NHRC was asked to examine all cases recieved by them
Sibal: An application for recalling June 18 order was filed and same was dismissed. Thereafter the interim report by NHRC was accepted and extension of time for probe was granted. There was no such direction for interim report. WB asked for a copy HC denied
Sep 28, 2021
Sibal: We were denied since then we would know the name of the complainant and that it cannot be disclosed under IPC. How could this be ?
Sibal: On July 22 we filed an exception to the report. There are 6 commissionerates, one Calcutta commissionerate at West bengal, 35 police units in total. Report is submitted to DGP and vetted by ASG office. Court thinks this can be done in 5 days. Still we did it
Sibal: The list of dates itself tells you the breach of natural justice ..in Muzaffarnagar riots case this Supreme Court took 5 months to decide each and every case
Justice Saran: how can rape and murder cases be looked at by CBI and arson, looting cases is by the SIT?
Justice Saran: There can be murder wit arson..
Sibal: yes then it will be looked into by CBI
Sibal: it is the duty of state to ensure justice when there is political victimisation or not.
Sibal: Please come to the writ filed by Priyanka Tibrewal who was a candidate in Entally. She appeared in person and submitted affidavits of almost 200 persons
Sibal: it was claimed by Tibrewal that people were forced to flee their homes.
Justice Saran: WB State Human Rights Commission is by the state?
Sibal: yes. Some people said they are out for employment and many came back. Some said they have different political ideology
Sibal: Another plea was filed by another BJP candidate from Baliaghat. He submitted how his house was set on fire and his complaints were not addressed. He raised an issue that nothing was done by state in this regard.
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 : 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