West Bengal Panchayat Elections 2023: Calcutta High Court upholds Single bench’s order quashing NHRC order appointing ‘Special Human Rights Observer’

Calcutta High Court: A Division Bench comprising of T.S. Sivagnanam, CJ., and Hiranmay Bhattacharyya, J. upheld Single bench’s order of quashing National Human Rights Commission’s (NHRC) order appointing ‘Special Human Rights Observer’ for upcoming West Bengal Panchayat Elections and held that the same amounts to encroaching the jurisdiction of the West Bengal State Election Commission (SEC).

Factual Matrix

In the instant matter, the NHRC vide order dated 12-06-2023, appointed the appellant 2-Director General (Investigation) of the NHRC as a ‘Special Human Rights Observer’ to conduct an on the spot survey of the State of West Bengal in consultation with SEC regarding identifying sensitive constituencies where violation is likely to occur regarding West Bengal Panchayat Elections and submitted a comprehensive report to the Commission for deployment of Micro Human Rights Observers in order to protect basic human rights of the people by ensuring no violence takes place during Panchayat election.

Aggrieved by the order dated 12-06-2023 passed by the NHRC, the respondent-SEC preferred a petition before this Court challenging the same on the grounds that NHRC has no jurisdiction to pass such an order being a Statutory Authority and interfere with the plenary powers of SEC, a Constitutional Authority. The single-judge bench of this Court vide order dated 23-06-2023, held that NHRC’s decision to take a pre-emptive step based on media reports and assuming jurisdiction regarding the case in hand it was based on conjectures and surmises and therefore, is liable to be set aside.

Aggrieved by the impugned order dated 23-06-2023 passed by the single-judge bench of this Court, the appellant 1-NHRC, preferred an appeal challenging the same.

Single Bench’s Verdict

The Court held that there is not a single observation as to the incompetency of the SEC for the NHRC to assume jurisdiction. The Court further held that there is a bar for the Human Rights Commission under Section 36(2) of the Protection of Human Rights Act, 1993 (the Act, 1993) from making any inquiry into any alleged violation of human rights which took place prior to one year. The Court also stated that NHRC is vested with powers under the Act, 1993 but the vested powers are in addition to and not in derogation of any specific constitutional and legal powers vested in any other particular authorities, therefore, “the scope of operation of NHRC has to be tested on the anvil of constitutionality and conscionably justice”. The Court held that impugned order passed by the NHRC is “a clear interference into exclusive domain of SEC, since SEC wields absolute power regarding the election process” and therefore, the same is liable to be set aside and any action taken pursuant to such order are revoked and reversed with immediate effect.

NHRC’ Contentions

While referring to Section 12(a),(d),(j) of the Act, 1993, the appellants contended that observing the objective of the Act, 1993, the NHRC can initiate action without waiting for the breach of human rights and the same cannot be called as political agenda. The appellants contended that vulnerability for a cause is not a conjecture and the NHRC has ample powers to take necessary steps for the promotion of human rights in terms of Section 2(j) of the Act, 1993. The appellants further contended that NHRC does not interfere or violate the process of election.

SEC’s Contentions

While raising the preliminary objection regarding the suo moto action taken by NHRC, the respondent contended that there is no basis for the suo moto action. The respondent contended that in terms of Section 36 of the Act, 1993, the NHRC is a Statutory Authority and once a SEC is appointed, who is a Constitutional Authority, the SEC will be the sole authority pertaining to the matter. Relying on Lakshmi Charan Sen v. A.K.M Hassan Uzzaman, (1985) 4 SCC 689 and Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628, the respondent contended that the NHRC should have pin pointed the allegations against any public servant before the assuming jurisdiction and in the absence of any such allegation, the single’s bench has rightly set aside the NHRC’s order. The respondent contended that the Act, 1993 does not empower NHRC to take pre-emptive steps and Section 13(1) of the Act, 1993 does empower NHRC to initiate any action but complaint is a pre-requisite for the same.

Moot Point

1. Whether the direction issued by the NHRC is within its jurisdiction and powers conferred under the Act, 1993?

2. Whether the NHRC without any verification process can commence the inquiry by exercising its powers under Section 12(a) of the Act, 1993 solely based upon the media report?

3. Whether appointment of an observer by NHRC would make an in road into the powers of SEC or is it an attempt to indirectly takeover of the state election process or to become part of the election process and would it tantamount to interference of the powers of SEC?

Law Point

• Section 2(d) of the Act, 1993 – Defines ‘Human Right’

• Section 12 of the Act, 1993 – Functions of the Commission

Court’s Observation

The Court observed that there is no written complaint received by the NHRC, since the NHRC took suo motu cognizance based on a magazine the “Frontline”, thus “the preamble portion of the order dated 12.06.2023 passed by NHRC does not specifically refer to the ensuing Panchayat elections.” and at the same time the impugned order passed by the NHRC is silent as to which right has been denied and for whom the same is passed. The Court further observed that the NHRC can make an enquiry even suo motu but at the same time such inquiry has to be into “a specific complaint of violation of human rights or abetment thereof or negligence in the prevention of such violation by a public servant.”

The Court observed that in order to exercise its function, the NHRC action should fall under the ambit of Section 12 of the Act, 1993. The Court observed that the NHRC did not conducted any independent exercise upon going through the media report, therefore, the powers exercised by NHRC cannot be traced to Section 12(a) of the Act, 1993. The Court further observed that in order to review the safeguard provided by the Constitution or any other law for the purpose of protection of human rights and making recommendation for its effective implementation under Section 12(d) of the Act, 1993, substantive material are required and in absence of the same the review of an action or an order cannot be directed. Similarly, the impugned order passed by the NHRC does neither traces its power to Section 12(j) of the Act, 1993 nor to any other observation as to how it seeks to promote human rights.

“The review of an action or an order cannot be done in the vacuum as the word “review” pre supposes that an order or the safeguard has been provided and the Commission would be empowered to review the same to examine as to whether it is sufficient safeguard as provided under the Constitution or under any other law for the protection of human rights and recommending measures for its effective implementation.”

The Court opined that the direction issued by the NHRC is not within its jurisdiction and powers conferred under Section 12 of the Act, 1993 as contended by the appellants. While relying on Ram Deo Chauhan v. Bani Kanta, (2010) 14 SCC 209, the Court further opined that “the precondition for the NHRC to exercise its jurisdiction to protect the human rights is that a person has been denied access to a right guaranteed either under the Constitution or under an international covenant which is enforceable by courts in India.”

Negating the contention of the appellant that NHRC have residuary power under Section 12(j) of the Act, 1993, the Court observed that the NHRC does have the jurisdiction to intervene for the purpose of protecting the human rights if there is a clear violation of human rights, but in the absence of any material disclosing violation of human rights, the same “cannot be fitted even within the widely worded residuary clause (j) of Section 12.”

The Court stated that the “SEC is constituted under the Constitution of India, it is a constitutional body and in the scheme of the Election Law such constitutional body has been entrusted with the constitutional function of conducting Panchayat elections in the state of West Bengal and any interference by NHRC into any of the powers of the SEC being conferred by the constitution is wholly out of the realm of NHRC.”

The Court observed that appointment of an observed by the NHRC will definitely make an in road into the election process and would be tantamount to interference of the powers of SEC, therefore, the same cannot be allowed. The Court further observed that it is the duty of the SEC to appoint ‘observer’ so that the NHRC cannot encroach upon the jurisdiction of the SEC by appointing observers.

Court’s Verdict

While upholding the impugned order, the Court held that the single-judge bench of this Court has rightly set aside the order passed by the NHRC and the Court did not find any good grounds to interfere with the same.

[NHRC v. W.B. State Election Commission, 2023 SCC OnLine Cal 1848, order dated 05-07-2023]

Advocates who appeared in this case:

Mr. Aman Lekhi, Sr. Adv., Mr. Ranajit Chatterjee, Mr. Dipak Rankan Mukherjee, Mr. Ujjwal Sinha, Mr. Aniruddha Mitra, Ms. S. Sonam, Counsel for the Appellant;

Mr. S.N. Mookherjee, Advocate General, Mr. Sirsanya Bandopadhyay, Mr. Arka Kumar Nag, Counsel for the Respondent/State;

Mr. Jayanta Mitra, Sr. Adv., Mr. Kishore Datta, Ms. Sonal Sinha, Ms. Sumita Shaw, Mr. Suman Sengupta, Mr. Tarun Kumar Chatterjee, Mr. Sujit Gupta, Mr. Sayan Datta, Mr. Soumen Chatterjee,, Counsel for the State Election Commission.

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