Panchayat Elections: Calcutta High Court Reserves Judgement In Appeal Challenging Single-Judge Order Against NHRC's Observers

The Calcutta High Court has reserved its judgment in an appeal preferred by the National Human Rights Commission (NHRC), against a single bench order which set aside appointment of observers and other related directions issued by the Commission “to protect human rights” in the course of the 2023 Panchayat Elections.

The matter was heard by a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya.

Senior Advocate Aman Lekhi appearing for NHRC contended that scope of duties of the ‘observers’ appointed by the NHRC and those appointed by the State Election Commission (SEC) under Section 134 of the WB Panchayat Election Act are 'fundamentally distinct'.

He submitted there is no "political agenda" behind appointment of NHRC observers and that observes will only be deputed in areas where violations of Human Rights have taken place, or are potentially vulnerable against the violation of human rights. He said the observers would not interfere with the duties of the SEC or interdict the election process in any way.

“The NHRC is entitled to make such an enquiry. Section 12 of the [NHRC Act] uses the word “protection” in a preemptive manner. NHRC cannot wait for violations of Human Rights to occur...Intent of statute must be kept in mind; it gives the NHRC a wide jurisdiction...No court can injunct the NHRC at this threshold from undertaking such a review. That negates role of NHRC. Even under Section 12(j) which deals with residuary powers of the NHRC, it can intervene in any situation if its satisfied that a threat to human rights as enshrined under the Constitution and other International Covenants, exists,” Lekhi argued.

It was further submitted that the single-judge erred in holding that the NHRC order was based on 'conjecture' since issues of violence during the 2023 Panchayat elections were continually flagged, and the Court had issued various orders for the identification of sensitive areas and deployment of forces, keeping in mind the potential for large scale violence. It was argued:

“The role of the NHRC in protecting and regulating human rights could not be understated. The single judge has construed the mandate of the NHRC narrowly. There was violence in 2018 and then in 2021. That is the context for 2023. Because of those experiences, NHRC would come in so that earlier experiences are not repeated...The NHRC is for a purpose, notwithstanding any other authorities. If those authorities impede the work of the commission, then might as well wind up the NHRC. A court can regulate the functioning of the NHRC’s power, but how can the inquiry be stopped? Who in their right mind will have an issue with the prayer for protection of HR during the elections?” Lekhi submitted.

He concluded by emphasizing on the concept of “comity of instrumentalities” to submit that the NHRC should be allowed to work together with SEC, to look after their respective domains of human rights and conduct of elections respectively.

Senior Advocate Jayanta Mitra and Advocate Kishore Datta appearing for the WBSEC contended that NHRC could not have assumed jurisdiction through a magazine report which was written on general instances of violence, without any details. It was submitted that not only was the NHRC relying on vague, anonymous reports to pass orders on the SEC, but it, as a statutory body was attempting to usurp into the domain of a constitutional body, thereby interdicting the election process. It was argued:

“A constitutional authority (SEC) has been set up for the purpose of exactly handling this situation, where there is law and order problem. NHRC is not constitutional authority it is statutory. What is happening is, a constitutional authority is sought to be supervised by an observer, who is appointed by the NHRC on the basis of a magazine report on the political leaders of WB. Section 36 of NHRC Act, precludes NHRC from taking cognizance of any matter pending before any commission in India. When the SEC is appointed, it is sole authority for that time being...no provisions under the NHRC Regulations, 1994 empower the Director General-Investigation to carry out an inquiry. Regulation 9 itself says that Commission cannot take account of vague or anonymous reports.”

Advocate General SN Mookherjee appearing for the State largely relied on the submissions made by the Senior Counsel for the SEC and stated that:

“The order of the NHRC directly pertains to the conduct of the elections. The NHRC can only make recommendations, it cannot give directions to the SEC. Regarding residuary powers of the NHRC, the Supreme Court has held that for this to come into play, there has to be a denial of Human Rights enshrined in Constitution or International covenants. This denial has to happen before residuary powers can be invoked. None of the elements in Section 12 of the NHRC Act has been satisfied. The NHRCs order doesn’t fulfil preconditions required to invoke it. It is not advisory or, monitory. It is not a recommendation it is a direction and as such not tenable.”

In his reply, Senior Advocate Lekhi laid emphasis on why the concept of human rights needs to be given primacy over all other legal rights such as voting and law and order in an election process. He concluded:

“Human rights issues go directly to the consciousness of a person. If someone is attacked for their point of view, then it is more than just a penal offence, it is a violation of human rights. NHRC deals with inviolable human rights, even though it is a statutory body. The responsibility of the body elevated its status. The role assigned to it flows directly from the Constitution. It forms the values behind the Constitution. NHRC has only asked for an inquiry and has forewarned due to its responsibility as a HR body. Only asking for the information that we are entitled to. Jurisdiction exists and there is no reason for SEC to object to NHRCs order.”

After hearing all the parties, the Court reserved its judgement in the matter.

Case: The National Human Rights Commission and Ors v The State of West Bengal & ors (MAT 1202/2023)

Coram: Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya