SC | “It’s so sad!” that NCPCR and State Commissions are fighting over jurisdiction when they should be protecting the rights of the children

“It’s so sad! We start with a lament because institutions set up to protect children have virtually forsaken them in a fight over their so called jurisdictions.”

Supreme Court: Showing dismay over the fact that the National Commission for Protection of Child Rights (NCPCR) and the West Bengal Commissions for Protection of Child Rights set up to protect children have been at loggerheads over their so called jurisdictions, the bench of Deepak Gupta and Aniruddha Bose, JJ held that there is no dispute over the jurisdiction of the two Commissions and that it was sorry that it had to spend its time resolving such disputes. Stating that in the fight between the State Commission and the National Commission the children have been, all but forgotten, the Court said,

“This Court as well as the two major parties litigating before us definitely have better things to do.”

The Court dealing with the issue wherein the NCPCR initiated an inquiry into the reports of Child Trafficking in the State of West Bengal. The NCPCR sought reports from various authorities, including Dr. Rajesh Kumar ADGP, CID West Bengal. It, however, received no response whatsoever from any authority. It, therefore, summoned the ADGP who responded by stating that the WBCPCR had already taken cognizance of the matter and, therefore, the NCPCR is barred from taking up the inquiry. To this the NCPCR responded that if he did not appear before the it, action against him will be taken under Section 166A of the Indian Penal Code, 1860. Thereafter, Dr. Rajesh Kumar sent a detailed reply challenging the authority of the NCPCR to summon him and also taking exception to the language used in the letter. When the matter reached Calcutta High Court, it stayed the NCPCR inquiry which then resulted into the present case before the Supreme Court.

The Supreme Court held that from a perusal of the documents on record it was apparent that Dr. Rajesh Kumar did not cooperate with the NCPCR. It said,

“We fail to understand why this police official took such a step. We may mention that he has not been served despite various attempts by this Court. It appears to us that he does not want to appear before us on one pretext or the other.”

It further noticed that the answer given by the State CID to the NCPCR is that the documents are lying with the Court.

“We are sure that a senior IPS official of the level of Dr. Rajesh Kumar must be aware that copies of all documents are also kept by the police before filing them in Court. Why could these documents not be provided to the National Commission?  At least those documents that had nothing to do with the criminal aspect of the case but dealt with formation of the ad hoc committees and the absence of a properly constituted CWC could have been provided.”

The Court was called upon to answer the following Jurisdictional issues:

Whether Section 13 (2) of the CPCR Act places the two Commissions in water­tight compartments   where they oust the jurisdiction of each other?

There is no question of ouster of jurisdiction of any Commission. The only constraint placed by Section 13(2) is that if the State Commission has already started an inquiry, the National Commission should naturally refrain from inquiring into the matter. This, however, does not mean that the National Commission cannot go into the other larger questions which may have led to the specific incidents of violation of child rights which need to be inquired into.

Whether in a case which has inter­State or international ramifications the jurisdiction, if any, of the NCPCR can be ousted?

Even a State Commission has the power to inquire into those matters which fall within its purview and even if the illegality is such that it has inter­State or international ramifications, e.g. a child is being illegally sent for adoption abroad. However, if the State Commission in such a case asks for assistance from the National Commission or some other State Commission where the child may have been illegally trafficked, the National Commission or the other State Commission(s) should cooperate with the Commission inquiring into the matter.

The Court concluded by saying that both the Commissions have to work for the best interest of the children in a spirit of cooperation and that there were no jurisdictional issues involved.

[National Commission for Protection of Child Rights v. Dr. Rajesh Kumar, 2020 SCC OnLine SC 27, decided on 13.01.2020]

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