This article has been written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. The author elaborates on the case of Dipak Mishra v. the State of West Bengal in reference to the violence that took place in Nandigram in 2007.

Introduction 

Nandigram had continuously been in light of criticism of the government’s economic reforms and emboldening other protesters nationwide. The event led the centre to change its ways and reconsider its policy. Its relevant history stems from the issue of eminent domain, which is an instrument used by governments to take land from private citizens for public use. But in the early years, the term public use was changed to public purposes. Then with the introduction of the 44th Amendment in 1978, the right to property was made a legal right from a fundamental right which further weakened the citizens’ ownership of their property. 

The West Bengal government introduced land reform programs known as Operation Barga. Its aim was to facilitate the conversion of state bargardars into landowners, but it did not serve its purpose well and left many farmers as bargadars. A Bargadar means a person who cultivates the land of the owner or, in other words, the land is cultivated by a Bargadar. So far as the matter of cultivation, the owner has nothing to do with cultivation. The owner remains the owner and because he is the owner, he gets a share. The Bargadar has to cultivate, i.e., to bear all expenses of cultivation. Finally, with the plan of Special Economic Zone (SEZ) which would benefit only the rich private corporations, the farmers who did not want to sell their land under eminent domain felt helpless for not being converted into title owners as promised. The agitated farmers further fueled by the opportunistic political forces gave rise to the 2007 violence.

An overview of 2007 Nandigram violence 

Nandigram has been an area of controversy ever since the 2007 violence. The communist party was accused of going against the farmers in support of big companies with the aid of the police force and cadres. It all falls back on the time when the then Chief Minister, Buddhadeb Bhattacharya, introduced his goal to industrialize in the state of Kolkata. Though the initial plan was to set up Ratan Tata’s Nano project in Singur, it got shifted to Nandigram of East Midnapore district, 125km away from Kolkata because of the left’s stronghold on the area. 

It was going to be in the form of the state’s largest SEZ in association with an Indonesian real estate giant called the Salim Group when it started facing backlash from the opposition. Mamata Banerjee from Trinamool Congress went on a fast all through December of 2006 which stalled the factory’s establishment.

Come January of 2007, a movement led by Bhumi Uchhed Pratirodh Committee (BUPC) along with the farmers, Trinamool activists clashed against the notification for acquiring land in the area for building a chemical hub for petroleum, chemicals, and petrochemicals investment region or a special economic zone. It culminated into a huge agitation as protesters dug roads and damaged bridges, culverts virtually cutting off the road links into the area of Nandigram. Soon after a clash between farmers and TMC men with CPM cadres resulted in the death of six. Subsequently, the area was sealed off till March of 2007. However, on 14 March, the police tried to enter the area and when the mob went out of control, started lathi charging and tear gas shelling, the police opened fire leaving 14 villagers dead and many others injured or missing. Through time the blame game continued and in 2011, Mamata Banerjee came to power.

A division bench of the Kolkata High Court ordered a CBI inquiry into the violence unleashed in Nandigram and asked the state government to file an affidavit detailing the circumstances under which the police firing was ordered.

The case of Dipak Misra vs. State of West Bengal 

As the Tamluk judicial magistrate’s court continued with cases filed against nine accused, another was looking into cases against 4 more accused. But the West Bengal government approached the subordinate courts in order to withdraw the cases against all 13. Pursuant to this, two judicial magistrates of the said court granted their consent to the state government for withdrawal of the criminal cases. As a result, these orders were impugned before the Calcutta High Court which on the 5th of March, 2021, went on to put stay on the 10 orders passed.

The contention of the parties before the High Court 

1. The petitioners stated that there was a malafide and colorable exercise of power in making the executive decision to permit withdrawal and that the reports presented were made by prosecutors just for formality without having discharged their statutory functions in terms of Section 321 Cr. P.C in issuing such orders.
2. That the nature of the impugned orders reveals an alarming state of affairs in issuing wholesome withdrawal of prosecution in a criminal case involving accusation for committing crimes of such a heinous nature. They further requested the court to ask the State to place on record the statistics of making such withdrawal orders.

On the other hand, the Advocate General on behalf of the respondent (the state):

1. While criticizing and questioning the sustainability of the matter filed under the public interest litigation, contended judicial orders cannot be subjected to writ jurisdiction except to a very minor extent which may be permissible in exceptional conditions.
2. That the orders passed were in June 2020 and Feb 2020 and now entertaining such petitions would be counterproductive since they are filed with oblique motives.

Findings of the High Court 

The court stated that if in fact the complaint turns hostile to the prosecution’s case and paves a way for the accused persons to get into the chain of availability of procedure under Section 321 of Cr. P.C then, these petitions may be considered under Article 226/227. For the matter regarding maintainability, it will be dealt with in future hearings. That the petitioners can continue to make their own research in determining the statistics, however, the court did not order the state to present the record. 

The court then went on to make cautious observations that the withdrawal on the satisfaction of the prosecutor is a functioning of the statute and judicial precedents and thus the judicial authority needs to be satisfied to consider the granting of consent to enable withdrawal. And the court agreed that prima facie the judicial power under Section 321 to grant the prosecutor withdrawal has not been appropriately exercised. 

Concluding in the lines that only when the judicial authority is satisfied that the public prosecutor has acted in sound and reasonably established principles regarding the withdrawal, would the consideration on granting of consent take place, the court acknowledged that a deeper look needs to be given into the impugned orders and until a final decision is reached, the petition will stand stayed. 

Moving to the Supreme Court

Due to the application filed by the prosecutor for withdrawal of prosecution in the trial court based on which Supian was discharged, Dipak Mishra, a BJP member moved to the Calcutta High Court filing public interest litigation for reopening the case. Supian had been booked for unlawful assembly and violence in 2007 in the Nandigram scene. The Calcutta High Court vide its order dated March 5, 2021, passed an ex-parte order on the public interest litigation so filed and put a stay order on the decision of the trial courts. Aggrieved by the decision, Supian submitted a special leave petition before the Supreme Court.

Proceedings

The petitioner contended that there was a wrongful basis for instituting these cases as there was no trial or conviction due to a lack of evidence. That the High Court is erroneous in passing such an ex parte order having the effect of discharge or acquittal of petitioner without first summoning him or granting the opportunity to be heard. And that reinstitution of cases is preventing the petitioner from imparting his duties as the election agent under the Representation of People Act, 1951.

While on behalf of the State, it was contended that the power to withdraw cases in political agitations has itself been given by the Apex Court to the state government and that such cases can be withdrawn by an elected government to create goodwill. Further referring to the High Court’s order, they expressed that they have not come across any such directions being given in public interest litigation in its judicial history.

Thus on March 26, 2021, the apex court finally granted an ad-interim stay against the Calcutta High Court’s order in so far it regards SK Supian. The Supreme Court stated that since the order affects the petitioner in his personal capacity and has been passed without hearing the petitioner, the order stands stayed in its operation for a period of two weeks till date or until further orders of the Division Bench of the High Court, whichever is earlier.

Subsequently, after the favourable response from the Supreme Court, staying the operation of the High Court’s order, 14 other accused persons against whom arrest warrants had been issues filed an application before the High Court Bench of Justices I.P Mukerji and Aniruddha Roy, seeking the stay of the high court’s March 5 order. The said Bench on 31st March 2021 maintaining the status quo till 8th April 2021 or any date earlier, in regard to the applicants before them, ruled in their favour. Further on 6th April 2021 the case was adjourned and listed to be heard on 12th of April, 2021. 

Nandigram and the current scenario

Ever since the SEZ controversy, the district was under Trinamool’s control which swept the panchayat polls there in 2008, then the party consolidated its hold by winning the Tamluk and Kanthi Lok Sabha seats in 2009, and topped it off by winning the Nandigram Assembly seat in a by-election that year. Every year March 14 is observed as Krishak Divas and Krishak Ratna awards are given as a token of respect and honour in memory of those who lost their lives in Nandigram. And now once again with the Bengal elections on the go, Nandigram has again become an important area of interest for the parties’ political campaigns. 

However, a new struggle seems to have arisen considering the issue of polarisation on religious lines and the age-old dirty politics of the Hindu-Muslim divide in order to gain votes. But such frequent visits along with the pitched campaigns and the media persons continuously hovering has rather made the locals irritated by such gimmicks.

Conclusion 

The matter of land acquisition has always been a touchy subject in West Bengal given its history of violent backlash in Singur, Nandigram, Andul, etc. As the trial remains due after hearing parties on 12th of April,2021, it got listed for 16th April, 2021, it will be interesting to see how the case unfolds amidst the ongoing elections deciding the fate of Nandigram. 

References

1. https://www.livemint.com/Politics/I1CAfbH2Und58UkVckctVP/The-Nandigram-story-till-now.ml
2.  https://www.rediff.com/news/2007/mar/23karat.htm

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: