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 PowersUnder 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 jurisdictionIn 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 ...

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

Srinjoy Das

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