{"id":296204,"date":"2023-07-07T10:00:47","date_gmt":"2023-07-07T04:30:47","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=296204"},"modified":"2023-07-13T09:41:26","modified_gmt":"2023-07-13T04:11:26","slug":"calcutta-high-court-upheld-quashing-nhrc-order-appointing-observer-scc-blog","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/07\/07\/calcutta-high-court-upheld-quashing-nhrc-order-appointing-observer-scc-blog\/","title":{"rendered":"West Bengal Panchayat Elections 2023: Calcutta High Court upholds Single bench’s order quashing NHRC order appointing \u2018Special Human Rights Observer\u2019"},"content":{"rendered":"
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Calcutta High Court:<\/b> 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).<\/p>\n

Factual Matrix<\/b><\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Single Bench’s Verdict<\/b><\/p>\n

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)<\/a> of the Protection of Human Rights Act, 1993<\/a> (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<\/a> 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”<\/b>. 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”<\/b> 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.<\/p>\n

NHRC’ Contentions<\/b><\/p>\n

While referring to Section 12(a),(d),(j)<\/a> of the Act, 1993<\/a>, the appellants contended that observing the objective of the Act, 1993<\/a>, 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)<\/a> of the Act, 1993<\/a>. The appellants further contended that NHRC does not interfere or violate the process of election.<\/p>\n

SEC’s Contentions<\/b><\/p>\n

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<\/a> of the Act, 1993<\/a>, 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<\/i> v. A.K.M Hassan Uzzaman<\/i>, (1985) 4 SCC 689<\/a> and Kanhiya Lal Omar<\/i> v. R.K. Trivedi<\/i>, (1985) 4 SCC 628<\/a>, 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<\/a> does not empower NHRC to take pre-emptive steps and Section 13(1)<\/a> of the Act, 1993<\/a> does empower NHRC to initiate any action but complaint is a pre-requisite for the same.<\/p>\n

Moot Point<\/b><\/p>\n

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  1. \n

    Whether the direction issued by the NHRC is within its jurisdiction and powers conferred under the Act, 1993<\/a>?<\/p>\n<\/li>\n

  2. \n

    Whether the NHRC without any verification process can commence the inquiry by exercising its powers under Section 12(a)<\/a> of the Act, 1993<\/a> solely based upon the media report?<\/p>\n<\/li>\n

  3. \n

    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?<\/p>\n<\/li>\n<\/ol>\n

    Law Point<\/b><\/p>\n