'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 ...

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

Srinjoy Das

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