Panchayat Elections: Calcutta High Court Dismisses NHRC's Appeal For Appointment Of “Human Rights Observers”

The Calcutta High Court has dismissed the appeal preferred by the National Human Rights Commission (NHRC) against a single-judge’s 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, on the basis of a media reports on wide-spread violence.

In dismissing the appeal, a Division Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that, being a body sui juris as pointed out by the single-judge as well as the Advocates for the SEC, the NHRC would have to trace the validity of its actions to its parent statute, viz. the Human Rights Act, 1993 (“Act”), which was not done in this case.

“NHRC being a statutory authority constituted under the 1993 Act has to act within the forecorners of the said statute and the regulations framed thereunder subject to the limitations imposed upon it by the statute and the regulations thereunder. It is the duty of the SEC, being a constitutional authority to appoint observers in accordance with the provisions of the 2003 Act. Therefore, the NHRC cannot encroach upon the jurisdiction of the SEC by appointing observers” it was held.

NHRCs Order was outside of its Statutory Powers

Under the Act, the Bench noted, that the powers of the Commission were laid down in Section 12, from clauses (a) to (j). In holding that the NHRC’s actions of passing directions on the WB SEC were not in consonance with its powers under Section 12, the Bench held:

“As noted above, the [NHRC] order dated 12.06.2023 uses the word “complaint”, it also uses the word “suo moto” and the basis of suo moto action is a media report. The question is, whether the NHRC without any verification process can commence the inquiry by exercising its powers under Section 12(a) of the 1993 Act solely based upon the media report. In our prima facie view the same would not be possible without an exercise being conducted by the NHRC. On a reading of the order dated 12.06.2023, it is evidently clear that there is no reference to any independent exercise conducted by NHRC upon going through the media report. Therefore, the powers exercised by NHRC cannot be traced to Section 12(a). Powers under clause (d) of Section 12 is to review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation…To our mind, the order dated 12.06.2023 is not traceable to the powers conferred under Section 12 (d) of the 1993 Act. Section 12(j) is a residuary power given to the NHRC to perform such other functions as it may consider necessary for the promotion of human rights. Unfortunately, the order dated 12.06.2023 passed by the NHRC does not trace its power to Section 12(j) nor there is any other observation as to how it seeks to promote the human right. Therefore, we are of the view that the order impugned in the writ petition is not traceable to any of the functions which the NHRC is empowered to do under section 12 of the Act.”

The Bench also noted, that in order for the NHRC to exercise its statutory powers, even suo moto, under Section 12 of the Act, there would need to be a specific complaint on the violation of human rights, or the inaction of a public servant in protecting members of the public against the violation of human rights. It was further noted that the NHRC's order was silent on what kind of human rights were being infringed, and whose human rights were being infringed, thereby taking it outside the scheme envisaged under Section 12 of the Act. It held:

“The order dated12.06.2023 issued by the NHRC does not speak of any specific complaint of violation of human rights. The said order is also silent as to which right has been denied and to whom for which the NHRC had to intervene and pass the order dated 12.06.2023. Though the Commission can make an enquiry even suo motu but 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... It goes without saying that the NHRC has the jurisdiction to intervene for the purpose of protecting the human rights if there is a clear violation of human rights. Therefore, in the absence of any material disclosing violation of human rights the order of the NHRC dated 12.06.2023 cannot be fitted even within the widely worded residuary clause (j) of Section 12.”

NHRC’s Order was in excess of jurisdiction

In dealing with the aspect on the ouster of jurisdiction of the NHRC, the Court opined that on the issue of appointment of a “special human rights observer” by the NHRC, the first hurdle would be Section 36 of the NHRC’s Parent Act, the Human Rights Act, 1993.

It was observed that Section 36 of the Act bars the NHRC from taking cognizance of matters which are pending before a State Commission or any other Commission, as well as of matters in which Human Rights violations occurred more than a year before the date of taking cognizance.

Thus, it was held that the SEC being a Constitutionally sanctioned body would have to be given exclusive control over the election process, and that the NHRC's attempts to intervene were lacking in jurisdiction and no attempt was being made to help the SEC. The Bench opined:

“The first hurdle which the NHRC has to cross is the embargo placed under Section 36 of the Act. Section 36 deals with matters not subject to jurisdiction of the Commission. Sub Section (1) states that Commission shall not inquire into any matter which is pending before the State Commission or any other Commission. Subsection 2 bars the NHRC from taking

It cannot be disputed 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…On a reading of the order dated 12.06.2023, it is clear that the decision has already been taken by NHRC to appoint a Special Human Rights Observer and also a decision has been taken to appoint Micro Human Rights Observer upon receiving the report of the second appellant…it is evidently clear that the entire matter has been pre decided and prejudged by NHRC giving no scope for any other interpretation and the plea that the order intends to assist SEC has to be necessarily rejected.”

It was also held that the NHRC had acted beyond the powers vested in it under Regulation 9 of the NHRC Rules, since the prayer on appointment of observers had already been rejected by the Court on earlier occasions, and these orders had subsequently been upheld by the Supreme Court. It was observed:

“The prayer for appointment of an [Observer] was turned down by this Court by the judgment and order dated 13.06.2023 which had already attained finality. Regulation 9 empowers the NHRC to dismiss complaints in limine in respect of a matter which is covered by a judicial verdict or which is subjudice before a court. The order dated 12.06.2023 appointing an observer, by whatever name called, though passed prior to the order passed by this Court on 13.06.2023, the attempt of the appellant to set aside the impugned order passing by the learned Single Judge necessarily implies that the NHRC is trying to function as a parallel seat of justice in an indirect way to rectify or correct the order passed by this Court on the issue of appointment of Observer which has already been upheld by the Hon’ble Supreme Court.”

NHRCs Order interfered into exclusive domain of the SEC.

In perusing various Supreme Court decisions, the Bench held that the word “election” has been interpreted to include all the steps necessary for holding election and that the test of “superintendence, directions and control” of the SEC, would be subject to law made by either Parliament or by the State legislature.

It was further noted that Article 243K of the Constitution deals with the election of the panchayat and vests the “superintendence, direction and control” for the preparation of electoral rolls and conduct of elections to the State Election Commission headed by a State Election Commissioner, appointed by the Governor.

It was held accordingly, that once the State Election Commissioner had been appointed, the entire election process would fall under the domain of the SEC. Thus, the NHRCs actions were deemed to have interfered in to the Constitutional domain of the SEC. It was opined:

“Thus, we are of the view that appointing an observer by NHRC would clearly make an in road into the election process and would tantamount to interfere with the powers of the SEC which is not permissible. However in case of any specific complaint the NHRC is well within its power under the 1993 Act to exercise any of the functions exercisable in terms of Section 12 of the Act read with Section 9 of the National Human Rights Commission (procedure) Regulations, 1994.”

The Court concluded by observing, that on earlier occasions, it has rejected prayers for the appointment of independent observers for the Panchayat Election, as that would amount to questioning the powers of the Election Commission and potentially interdict the election process, and thus the NHRC ought not have issued orders and directions on an issue that had been conclusively decided as well as deliberated on by the Court. It was held:

“The SEC being a constitutional authority vested with the power to conduct panchayat elections is duty bound to ensure free and fair election… NHRC ought not to have issued the order dated 12.06.2023 in the garb of protecting the human rights as the said direction seeks to encroach upon the exclusive jurisdiction of the SEC to conduct free and fair Panchayat elections.”

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

Case: National Human Rights Commission and Ors v The State of West BengalCitation: 2023 LiveLaw (Cal) 182

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