Ahmedabad, 31 July 2012

Earlier this month, on July 3, the National Commission for Minorities dismissed the complaint filed by Ms. Niyazbibi Bannumiyan on the grounds that it does not have jurisdiction to look into the matter and investigate it “as requested” in the complaint.

Ms Bannumiyan had primarily stated that her family, which was escorted to a relief camp during the riots, was unable to return to its village after a mob destroyed their home and looted their belongings. Also, the land owned by them had been sold off for an allegedly low price under distress.

Earlier this year, in March, the NCM had not only taken cognizance of the complaint, but agreed to conduct a “fuller examination” of the case, including summoning the then IG Kuldeep Sharma as well as Rahul Sharma and RB Sreekumar, all IPS officers known for their anti-Modi stand.

Most importantly, NCM had showed initial signs of entertaining a request by Sanjeev Bhatt of using its powers under the NCM Act to requisition government records and documents which, according to Bhatt, had a “bearing on the matter”. Bhatt is an officer who has claimed that he was present at the law and order review meeting where Gujarat Chief Minister Narendra Modi instructed officers to go soft on Hindus.

The author had earlier pointed out how the NCM was not only giving a “free-hit” to Bhatt to carry out his personal agenda, but was acting in blatant violation of its own rules and, consequently, undermining ongoing processes in the Supreme Court, SIT as well as other forums hearing the same aspects before the NCM.

In a petition challenging the NCM’s jurisdiction to conduct a ‘belated’ examination of these matters, Advocate for the State of Gujarat submitted that the National Human Rights Commission had filed a petition before the Supreme Court on the very subject matter. Moreover, the Supreme Court appointed SIT had already recorded statements of the officers who were asked by NCM to depose before it.

Lastly, the matters before the NCM were already subject to judicial scrutiny before the courts of India as well as the Nanavati Mehta Commission appointed under the Commission of Inquiries Act, 1952.

The author’s view is that while the NCM has arrived at the right conclusion in dismissing the petition, it has used the wrong rationale. It strips itself of some of the powers it actually has, on one hand, and, at the same time, accords itself the discretions it does not have.

In order to deal with the requests made in the complaint and by Bhatt, the NCM stated that it would have to proceed with an ‘investigation’ to arrive at a decision as a quasi-judicial body. Pronouncing a ‘decision’ and going into aspects of culpability or wrongdoing, according to it, would be beyond its jurisdiction since it does not have any judicial or coercive powers.

Because the complaint sought to convert the NCM into an “inquisitorial forum”, the NCM halted further proceedings in the matter. An “inquisitorial forum” is a body actively involved in investigating the facts of the case as opposed to a forum which operates within the boundaries of the documents and materials submitted before it by parties.

Under Section 9(4) of the NCM Act, the NCM indeed has all powers of a “civil court trying a suit” and, in particular, it has the powers to summon and enforce attendance of any person and examine him on oath, require discovery and production of any document, receive evidence of affidavits, requisition any public record and issue commission for examination of witnesses and documents.

These powers all but confirm the NCM’s authority to conduct an inquiry of sorts in order to look into a private complaint before it.

On the other hand, the grounds on which NCM should have dismissed the petition right at the outset are the ones for which it has accorded to itself a wide degree of latitude.

Responding to State of Gujarat’s argument that it should not take up this matter and related representations in view of the ongoing judicial and quasi-judicial processes, the NCM stated that that is an issue of “discretion” and “propriety”, and not jurisdiction.

The fact is that, as the author pointed out earlier, under NCM’s own guidelines, it cannot accept complaints concerning matters subjudice, matters where ordinary judicial/quasi-judicial/administrative remedies are available elsewhere or matters relating to events one year old or older.

Although that does not change the outcome of this present petition, the NCM has indirectly given itself powers to disregard, for future purposes, ongoing judicial scrutiny in several forums of matters before it. This self-assumption of powers can give rise to many instances of unwarranted overreach, with or without political undertones, into matters pending resolution in Indian courts and quasi-judicial fora.