Tilting the Balance in Favour of Positive Law

The Supreme Court delivered its Judgement in Bimal Gurung v. Union of India & Ors. on March 16. The Judgement dismissed Gurung’s petition for transferring cases to an independent agency. In paragraph 35 of the Judgement, the Court stated that “[i]n the present case we are not called upon to express any opinion as to whether allegations made in FIRs which have been lodged against the petitioner and other supporters of [Gorkha Janmukti Morcha (GJM)] are true or false. The issue is as to whether, as prayed by the petitioner, investigation in such cases are required to be transferred to a central investigat[ion] agency. Thus our observations are only in reference to answer the prayer made in the writ petition.”

The prayer had sought relief through transferring all investigations and cases filed during the agitation to an independent agency. The prayer also sought a Writ of Mandamus for all future cases to be transferred to the said agency, as well as anticipatory bail for all the accused and police protection for Bimal Gurung.

The agitation began after statements made by the West Bengal Education Minister and the Chief Minister conveyed that learning the Bengali language would be made compulsory in schools as one of the three languages. This was opposed since this would disenfranchise those who wanted to study Nepali since Hindi was already compulsory. Hence, if they wanted to study Nepali they would have to forego studying English. The respondents maintained that no Notification was issued by the Government of West Bengal in respect of this. The allegations raised in Gurung’s petition were that the entire process of investigation was compromised and politically motivated. The respondents, however, pointed to the violent nature of the agitation.

Gurung alleged that there was a threat to GJM supporters and pro-Gorkhaland activists, as 11 GJM members had been killed during the agitation. The respondents, however, maintained that property had been destroyed and that even police personnel had been killed and injured. To this, the petitioner stated that two FIRs pertaining to two different blasts, filed in two stations 44 km apart and on different days were identical in terms of language. It was claimed that this was because a draft had been prepared and circulated. Bimal Gurung had even been accused in cases where GJM members had been killed. However, in cases where police were accused of killing agitators, the CID investigation had still not been completed. On this basis, the petitioner’s advocate submitted that even though a charge-sheet has been filed and the trial has commenced a case can still be transferred to another agency. He reiterated the prayer that the investigation should be transferred to an independent agency which the Government of West Bengal has no control over. On this point, the respondents stated that most of the cases transferred to independent agencies are on the application of the victim and not the accused.

Refuting the allegations raised, the respondents stated that the Writ Petition was filed to avoid arrest. They also referred to cases pending against Gurung since 2007. The respondents challenged the maintainability of the petition claiming that Gurung’s petition was neither representative petition nor a PIL. On this basis, the respondents stated that none of the reliefs prayed for could be considered. Referring to the allegations of bias, the respondents contended that the allegations made against the state government were unsubstantiated, and the petitioner has not raised any allegations against the state Judiciary. They also stated that if the FIRs are false, then Gurung can present his case on the facts and law in the Courts hearing the cases. They further submitted that distrusting the entire state machinery cannot be accepted since the state has a duty to maintain law and order.

The Supreme Court referred to the decision in State of West Bengal and others vs. Committee for Protection of Democratic Rights. The Court had laid down that through a Writ Petition, Courts can direct the CBI to investigate in any state without the state’s consent. However, this power could only be used in exceptional circumstances such as; to do justice between the parties, instilling confidence in the mind of the public, and where the state police lack credibility. In K.V. Rajendran v. Superintendent of Police, CBCID South Zone, of Police the Court had laid down the circumstances when a transfer can happen;

1. High officials of state authorities are involved;
2. The accusation is against top officials of the investigation agency, thus allowing them to influence investigation; and
3. Where investigation prima facie is found to be biased.

However, before applying these tests, the Supreme Court sought to assess the petitioner’s stand. This they did by analysing the nature of the statehood agitation and the shutdown. The Supreme Court referred to the decisions in Bharat Kumar v. State of Kerala & Ors. and The Communist Party of India (M) v Bharat Kumar & Ors. In these cases, the High Court of Kerala, as well as the Supreme Court, took the stand that ‘bandhs’ are unconstitutional as they violate the Fundamental Rights of citizens.

The Court referred to the Calcutta High Court Order which observed that the situation in Darjeeling and Kalimpong was deteriorating and that insurgency and violence was rampant. On this basis, the Supreme Court dismissed any notion that the agitation was based on the democratic aspirations of the people. The Supreme Court accepted the contention of the respondents that the State of West Bengal would not carry out the destruction of property including police vehicles. Though for some reason, the contention that Bimal Gurung would not seek the death of his own party members was not referred to by the Hon’ble Court. The Court noted that both sides accepted that death and injury to both civilians as well as police personnel had occurred. The Court accepted the contention of the respondents that the state government has a duty to maintain law and order. They also observed that under the CrPC the police have a duty to register FIRs. Thus, there can be no allegation of bias. However, with over 300 FIRs filed a doubt may arise over the efficacy of the duty.

There is video evidence as well as several eyewitnesses to the excesses committed by the West Bengal Police. There is an equal amount of video evidence of agitators pelting stones and using sticks against the police. However, the balance is skewed in favour of the state government in this regard. Appointments to the lower judiciary in West Bengal are made by the State Public Services Commission. The allegations raised in the petition in the Judge Loya death case shows that the lower judiciary can be compromised. Gorkhaland is an emotive issue for the people of the hills and a prestige issue for the Government of West Bengal. Also considering that Binay Tamang appears to have given up the demand for Gorkhaland, an allegation that the state government would go to any lengths to avoid the creation of Gorkhaland would not seem unfounded. It is not legally wrong to allow the state government to carry out the investigation and prosecution of cases regarding Gorkhaland activists within the state. Yet considering the emotive nature of the Gorkhaland demand, it would be politically astute to transfer the cases.

The Hon’ble Supreme Court’s view in preventing Bimal Gurung from seeking undeserved protection, has unfortunately thrown the baby out with the bathwater. Bimal Gurung is no saint. Apart from being known to be a particularly violent individual, he is also alleged to have misappropriated developmental funds. These allegations were even levelled by the West Bengal government as reasons for the agitation. However, whether Gurung is arrested and faces trial or not, the fate of those killed in the agitation hangs in the balance. The deaths of Kalimpong Municipal Councillor Barun Bhujel in police custody, Ashish Tamang whose lifeless body was discovered on the side of the road with bullet wounds, as well as Dawa Bhutia killed in Sikkim by the West Bengal police must be answered for. The Court could have granted relief to the victims of those cases where the accused were police officials. The viral audio clip of the Inspector-in-Charge Soumyajit Roy threatening rape probably occurred too late to have been submitted as evidence. A CID investigation has been ordered, however, considering the suffering meted to the hills by the government, the common people have little hope for a fair investigation. The Supreme Court has successfully upheld the positive law that the State is responsible to maintain law and order. However, the principle of natural justice that ‘no person can be a judge in their own case’ has not been strictly applied.