'Intrusion Into Exclusive Domain Of SEC': Calcutta High Court Sets Aside NHRC Order Appointing Observer To Oversee Panchayat Polls

The Calcutta High Court on Friday set aside an order of the National Human Rights Commission (“NHRC”) deputing the Director General (Investigations) of the Commission as a Special Human Rights Observer for the upcoming panchayat polls, slated to held on July 8.

A single-bench of Justice Sabyasachi Bhattacharya observed that panchayat elections are held by the State Election Commission (“SEC”) and "intrusion by the NHRC into the exclusive domain of the SEC" is not justified. It added,

"The assessment of the Election Commission as to the state of law and order and the nature and adequacy of the machinery to deal with the situations so as to ensure free and fair elections must, prima facie, prevail."

Court said exception to such powers has been made only with regard to law enacted by the Parliament as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission.

The Bench noted that the NHRC erred in passing orders, directing the SEC to curb instances of violence during the WB Panchayat Elections 2023, since it did not have any authority to do so over a Constitutional body such as the SEC; thus acting outside the Constitution as well as its parent statute, the Protection of Human Rights Act, 1993. (“NHRC Act”)

Court observed, “Even if the NHRC feels that there may be a law and order situation during elections, it does not have the power to interdict the authority of the State Election Commission and pass independent directions on the Commission as well as other authorities of the State with regard to the conduct of Elections, which would be directly detrimental to the powers of the State Election Commission under the Constitution of India.”

NHRC had also issued orders to be apprised on the number of incidents of violence during the elections and directing the SEC to inter alia identify “sensitive areas” and to file a report on the same for the protection of lives through the “appointment of micro human rights observers.”

It was argued by the SEC that it being a Constitutional body, vested with powers under the Constitution of India for the conduct of elections, could not have orders imposed on it by a statutory body such as the NHRC. It was argued that, even in the absence of jurisdiction, the NHRC thrust itself into the matter and passed its order on the basis on magazine reports, and previous incidences of violence in 2018 and 2021, which it had used to invoke its jurisdiction in the matter.

Court noted that, according to the Senior Advocate Jayanta Mitra for the SEC, the SEC would be pari materia to Election Commission of India under Article 324 of the Constitution and that the test of “superintendence”, “direction” and “control” in an election would be solely the prerogative of the Election Commission and the NHRC had no jurisdiction on the same.

Agreeing, the Bench held that not only did the SEC have required authority under the Constitution of India, but it was also ascertained as the supreme authority on elections under the WB Panchayat Election Act. It observed,

“petitioner is justified in contending that the provisions of the Constitution of India pertaining to the SEC puts it on pari materia pedestal as the Election Commission of India….a bare perusal of judgments [of the Apex Court] show that the entire process of election was included within the word “election” in Article 324, which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the election process. The terms “superintendence‟, “direction‟ and “control‟ are found not only in the Constitution of India, including Article 243-K and Article 324, but are also found in the conferment of authority on the State Election Commission under the West Bengal State Election Commission Act, 1994, in Section 4(1) thereof as well as in the West Bengal Panchayat Elections Act, 2003.”

Justice Bhattacharya took exception to the fact, that not only did the NHRC have a lack of jurisdiction in issuing such directions over the SEC under both its parent statute as well as the Constitution, but that the order passed by the NHRC was purely on the basis of “magazine reports” and previous occurrences in the years 2018 and 2021, without reliance on any concrete facts from the present election cycle. The Court observed,

“Section 36(1) of the NHRC Act itself clearly prohibits the NHRC to enquire into any matter which is pending before the State Commission or any other Commission…. The SEC is, in fact, such a Commission…again, sub-section (2) of Section 36 of the said Act prohibits the Commission from enquiring into any matter after the expiry of one year from the date on which the Act constituting violation of human rights is alleged to have been committed, thus, excluding the powers of the NHRC to delve into the alleged violations of the years 2018 and 2021.

It is unfortunate, that a statutory authority placed reliance on media reports and observations with regard to violence in 2018 and 2021, to suo motu assume that a similar violence would be repeated in the State of West Bengal and that the SEC was incompetent to deal with the same. There is not a single observation, in the impugned order as to the incompetency of the SEC in that regard. Such lack of any recent cause of action to assume jurisdiction by the NHRC has been sought to be improved from the Bar by submitting that the NHRC has several current reports, complaints and statistics to support its stand. However, there is absolutely no reflection of the same in the impugned decision.”

Finally in setting aside the order of the NHRC, the Court noted that in matters concerning elections, the Constitution of India has provided supremacy to the Election Commission of India and various State Election Commissions. Even though the scope of the NHRC is for the protection of human rights, the Court noted that such directions could only be taken when they would not interdict an election process, over which the SEC had exclusive jurisdiction, as in this case. In holding that the actions of the NHRC not only violated the Constitutional provisions in this regard, but also the NHRC statute itself, the Bench concluded:

“The expression “human rights” has to be liberally construed…however, the powers vested in the NHRC under the Protection of Human Rights Act, 1993, (“NHRC Act”) are in addition to, and not in derogation of, specific constitutional and legal powers vested in particular authorities. Such powers are definitely to be exercised where there is a gap and chink in the legal and constitutional armour to ensure protection of human rights, but cannot give a charter to the NHRC to function autocratically, superseding specific powers conferred by the Constitution on other authorities. Any other interpretation would run the risk of conferring uncharted and blanket authority on a recommendatory body which could, in turn, lead to such bodies being used as tools to satisfy political vendetta. Thus, the scope of operation of the NHRC has to be tested on the anvil of Constitutionality and conscionable justice.

The argument that the scope of human rights vis-à-vis interference by the Human Rights Commissions also extends to the political process, is acceptable only to the extent where such power does not interdict or conflict with the constitutional conferment of power on the State Election Commission….it is the exclusive domain of the SEC, in conjunction with the State Authorities, to conduct Panchayat Elections in a State…such domain of the SEC and the State cannot be interdicted by the NHRC…where the law does not provide for such interference. Each and every direction given in the impugned order by the NHRC pertains to the exclusive domain of the SEC, conferred by nothing less than the Constitution of India, which is the source of authority of all Indian statutes” it held.

This comes as a rare win for the SEC which itself has been the subject of numerous litigations before the Calcutta High Court, the most notable of which have culminated in a series of contempt hearings before a Bench presided over by Chief Justice Sivagnaman, for disobeying the directions of the Court pertaining to the nomination process in the WB Panchayat Elections 2023. The SEC has been directed to file affidavits showing its management of the election process and proving it did not wilfully disobey the Court’s orders.

Notably, another single-judge passed an order directing the CBI to enquire into instances of violence and impropriety that occurred during the nomination process as well.

Case: West Bengal State Election Commission and another vs. National Human Rights Commission and others

Coram: Justice Sabyasachi Bhattacharyya

Citation: 2023 LiveLaw (Cal) 172

Click Here To Read/Download Order