'Premature': Calcutta HC Dismisses Plea By WB Child Rights Commission Seeking Compensation From Election Commission For Covid-19 Orphans

The Calcutta High Court on Friday dismissed a Public Interest Litigation (PIL) petition filed by the Chairperson of the West Bengal Commission for Protection of Child Rights (WBCPCR) seeking a direction upon the Election Commission of India (ECI) to compensate each of the families of the children who have lost their lives due to Covid-19 following the announcement of the general elections in the State on February 26, 2021. 

The plea had stated that the plight of children affected by Covid-19 in the State was the direct outcome of the insensible decision of the election commission to conduct the general election in the state in eight phases despite predictions made by several organizations and medical experts regarding the second COVID wave. 

A Division Bench comprising Justice Harish Tandon and Justice Soumen Sen dismissed the petition for being 'premature' after noting that the State Commission had not utilised its powers under Section 15 of the Protection of Child Rights Act, 2005 (Act) to conduct an enquiry and ascertain if the cause of death is due to any negligent conduct of the election commission. 

"In the instant case admittedly, there is no inquiry initiated by the State Commission in terms of Section 15 of the said Act. We could not find any plausible explanation from the writ petitioner for not exercising the said power. When a State Commission is empowered to carry on such investigation and inquiry and ascertain the cause of death it is expected that such enquiry should be conducted first before approaching a constitutional court with such findings and implementations of its recommendations if Government concerned failed to implement such recommendations. Death of any person including a child is unfortunate and undesirable whatever the reasons may be for the cause of such death. A child is a precious asset. It is only expected that if there is any violation of a child's right the Commission would without delay invoke the provisions of the Act and take such measures and steps as they are expected to take under the said Act", the Court underscored. 

The Bench further noted that no meeting had been conveyed by the Chairperson of the State Commission to look into cause of death of children during the election period and to find out the cause of such death. The Court further emphasised that the door of the Constitutional Court is not closed and that once the Commission arrives at a definite finding of negligence, it can always approach the Court with such findings and recommendations.

The Court further observed that a conjoint reading of Sections 13, 14 and 15 of the Act would show that the Commission is empowered to enquire into complaints and take suo motu cognizance of the violation of child rights. Reliance was also placed on the Gauhati High Court decision in National Commission for Protection of Child Rights v. State of Arunachal Pradesh in this regard. 

"It is true that the inquiry is not in the nature of a criminal investigation but upon completion of the inquiry under Section 13(2) of the said Act the Commission could have approached the Supreme Court or the High Court concerned for appropriate directions", the Court opined. 

Thus, the Court held that the writ petition is 'premature' as the petitioner without exhausting the powers conferred upon the commission under Section 13, 14 and 15 of the Act approached the writ court with reliefs which is only possible provided an inquiry under Section 13(2) is complete.

Dismissing the plea, the Court observed, 

"The chairperson has not given any cogent reason for not taking the other members of the commission into confidence and exercising powers under the aforesaid Sections. The writ petition is not for implementation of any recommendation of the State Commission. The fact finding authority without exercising and exhausting its power under the Act cannot approach the constitutional court directly. The petitioner cannot bypass the provision of the Act and directly invoke the writ jurisdiction. The writ petitioner being the Chairperson is expected to be aware of the powers and duties of the State Commission and it is only expected that the petitioner should invoke the powers under Sections 14 and 15 first and then with the recommendation approach the court."

Case Title: The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others.

Case Citation: 2022 LiveLaw (Cal) 203

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