NHRC’s opinion about its ‘jurisdiction’ vis-à-vis WBHRC

The National Human Rights Commission has reacted to the resolution of the West Bengal Human Rights Commission, dated 5 February 2001 and received in the NHRC on 11 February 2001. The NHRC considered the resolution in its meeting held on 14 February 2001 and confined its response to the two specific matters raised therein, the particulars of which were communicated to NHRC for the first time in this manner. The first was the alleged public statement of the Chief minister of West Bengal on 25 December 2001, disdaining respect for human rights by the police force and contemptuous reference in that connection to the Human Rights Commissions, and the second related to the incidents at Hemnagar Choto Angoria in Midnapore district.

On these two matters the State Commission in its resolution, placed reliance on Section 36 (1) of the Protection of Human Rights Act, 1993, to contend that the NHRC should have treated both of them as `pending’ before the State Commission and should have refrained from taking cognizance of the same.

This Commission felt that the first matter did not relate to complaint of any specific violation of human rights or negligence in prevention of such violation by a public servant, but related to an allegation that the Chief Minister of West Bengal had made a disparaging public statement about the `Human Rights Commissions’ (not merely the State Commission). Thus the statement attributed to the Chief Minister was being construed as an exhortation to ignore even the NHRC. This Commission found it difficult to perceive how the State Commission could claim exclusive jurisdiction in such a matter, which was naturally of serious concern to the National Commission as well. Calling for an authentic version of the Chief Minister’s statement through the Chief Secretary of the State by this Commission can hardly be a matter to which Section 36(1) of the Act can be attracted. While this Commission, on obtaining the authentic version of the Chief Minister’s clarifying his statement has closed the case, the State Commission has till now not informed NHRC of the manner in which they have dealt with it. Section 36(1) of the Act has no application to this matter.

In respect of the other matter, the facts given now by the State Commission are that it received an application on 11 January 2001 from the Committee of Protection of Democratic Rights of West Bengal asking for an immediate investigation into the matter; and the State Commission on 15 January 2001 took the view that it was "a matter of failure of law and order in the State" and transmitted it to the Home Secretary of the State Government "to take appropriate action in the matter and report the action taken in this regard". Apparently, the State Commission was of the view that the above application dated 10 January 2001, received by it on 11 January 2001, had the effect of making the matter `pending’ before the State Commission and the NHRC ought not to have entertained the same. The view of the State Commission is that the mere receipt of an application in the Commission’s office makes the matter `pending’ before it.

Assuming that the word `pending’ in Section 36(1) of the Act is to be so construed with the result that the matter was pending before the State Commission from 11 January 2001 till it was disposed of on 15 January 2001, cognizance taken by this Commission of the matter can not be contested. In the first place, cognizance of this matter was taken by the NHRC on a petition of Dr. Tamali Sen Gupta, Advocate, dated 26 December 2000 and presented before a Member on 29 December 2000. The learned Member took cognizance on the same day and directed that it placed before the Full Commission on 3 January 2001. The complaint alleged large scale violations of human rights in Midnapore district naming specific public servants alleged to be involved in gross violation of human rights, seeking several reliefs including that against willful inaction of the State authorities, inter-alia, in Midnapore district. The full Commission issued notice to the Chief Secretary and Director General of Police, West Bengal on 3 January 2001. Thus, cognizance had been taken by this Commission as early as on 29 December 2001. Notice to the State Government was issued on 3 January 2001 and then on 16 January 2001 a further direction was given to the Investigation Division of the NHRC to collect facts to enable further consideration of the matter.

The above facts would clearly show that not merely was cognizance taken of the situation alleged in Midnapore district by this Commission earlier on 29 December 2000 but notice had also been issued to the Government of West Bengal on 3 January 2001 before the State Commission received the application on 11 January 2001. After the order of 3 January 2001 the next order by this Commission was made on 16 January 2001. The State Commission, according to the facts given by it, had already disposed of the matter on 15 January 2001 treating it as a "matter of failure of law and order in the state" and only requiring the Home Secretary of the State Government to take appropriate action in the matter. On any view, at best the matter could be treated as pending before the State Commission only from 11 January 2001 when the application was received to 15 January 2001 when it was disposed of in the manner stated. Further, no action having been taken by the State Commission itself except to transmit the application to the State Government when the complaint was against the State Government itself, the NHRC found it difficult to appreciate the stand taken by the State Commission. Besides, the matter was pending before the NHRC from 29 December 2000. For this reason, the State Commission should have abstained form entertaining the same on an application made to it on 11 January 2001.

The NHRC also regretted that the State Commission had made a protest in this matter, and that too through the media instead of by a written communication to this Commission, so that it would be resolved between the two Commissions without any unwanted publicity.

The NHRC was constrained to give the above opinion to emphasize that the object of better protection of human rights obliges this Commission to proceed with the inquiry it has instituted particularly when the State Commission has closed the matter by referring it to the State Government which is itself accused of the violation.