Subject – Administrative Law
COMMISSIONS
SUBMITTED BY: ARVIND SRINIVAS I.D. NO. 1555 3 YEAR , B.A. L L. B. (HONS.) RD
ATE OF SUBMISSION : 12 SEPTEMBER , 2010. DATE TH
OF
INQUIRY
Research Methodology 1. Aim Ai m:
This paper aims to make a study of and examine the status, relevance and functions of commissions of inquiry.
2. Scope and Limitations :
The scope of the paper extends to a descriptive study of the status,powers, functions and relevance of commissions of inquiry. Due to paucity of time an space an analytical approach could not be taken.
3. Research Questions:
The following research questions are answered in this paper: 1. What What is the stat status us of a commi commissi ssion on of enqui enquiry? ry? 2. What are are the powers powers and and function functionss of a commis commission sion of of inquiry? inquiry? 3. What What is the releva relevance nce of commi commissi ssions ons of of inquiry inquiry??
4. Data Sources :
Secondary sources of data such as books and case law have been used in the compilation of this paper. All sources of data have been duly acknowledged.
5. Style of Writing :
A uniform and analytical mode of writing has been employed throughout the paper.
6. Mode of Citation :
A uniform and approved mode of citation has been used in this paper.
Introduction
The necessity for the Commissions of Inquiry Act of 1952 (the Act) arose principally due to the tedious nature of the measures that needed to be taken before setting up any such commission. Prior to the enactment of this legislation public inquiry had to be ordered either by executive notice served under the Public Service Inquiries Act of 1850 or by the enactment of ad hoc legislation such as the Sugar Crisis Enquiring Authority Act of 1950. The Act itself is modeled on the Tribunals Of Inquiry (Evidence) Act, 1921 of England. Despite the general structure being similar, the two Acts have significant significant differences differences.. The differences differences increased increased after the recommendati recommendations ons of the 24th Law Commission Report on this subject were implemented via an amendment to the Act in the year 1971 1971.. The The amen amendm dmen ents ts main mainly ly perta pertain ined ed to the the prot protect ectio ion n of the the libe liberty rty and and repu reputat tatio ion n of individuals or groups. The latest amendment to the Act was in the year 1990.
These measures often proved to be inadequate in dealing with the overwhelming need for public inquiry by an independent and impartial authority. The need for this independent authority was reinforced by the fact that parliamentary committees were and are often influenced by the political conditions that are prevalent at the time. For example Indira Gandhi jailed numerous members of Parliament on the basis of the findings of parliamentary inquiries and was herself jailed on this basis, upon losing majority in Parliament.
The functions of the commissions can be of various types. There are commissions which are inst institu ituted ted to prov provid idee info inform rmat atio ion n such such as the the ones ones deali dealing ng with with the the censu census. s. Then Then ther theree are commission commissionss such as the Pay Commission Commission which provide the Government Government with recommendati recommendations ons on matters of great national importance. Thirdly there are commissions of inquiry which investigate the conduct of public officials which have the tendenct to dversely affect the confidence of the people in the public administration. Thus the function of a commission of inquiry, primarily, is to investigate such conduct and recommend administrative or legislative measures to remedy any adve advers rsee situ situat atio ion. n. As the the Gove Govern rnme ment nt canno cannott be expe expecte cted d to go into into every every littl littlee detai detaill of irregul irregularit arities ies in public public admini administr stratio ation, n, commis commissio sions ns of inquir inquiry y are appoin appointed ted to carry carry out this this paramount task.
The status of the commissions of inquiry has been subject to extensive judicial scrutiny. It is now, however, settled law that a commission of inquiry is not a court except where the statute expressly grants it this privilege. Even then the commissions have considerable powers. The Act grants the
commissions the power of summoning witnesses, of binding them under oath and of generally regulating and evn formulating its own procedure.
The aim of this research paper is to examine the status, finctions and relevance of commissions of inquiry.
Status of Commissions of Inquiry
Appointment
The Central Government may appoint a commission with regard to any of the matters mentioned in all three lists of the 7 th Schedule to the Constitution whereas the State Government may only do so with regard to matters contained in List II and List III of the 7 th Schedu Schedule. le. This This power power of appointment is derived from the provisions of Article 246 read with entry 94 of List I and entry 45 of List II of the 7 th Schedule. Schedule.1
The Supreme Court in Dalmia's case 2 upheld the constitutionality of the Act and the appointment of commissions under s.3 of the Act. It was contended that the Act was ultra vires the Constitution and that that the the appo appoin intm tmen entt of comm commis issi sion onss was was bad bad due due to exce excess ssiv ivee deleg delegati ation on of power power to the the government resulting in the usurping of both Parliamentary and judicial powers. It was also argued that inquiries cannot be conducted except for the purposes of legislation. The Supreme Court rejected both the arguments. The term 'for the purpose of' contained in entry 94 of List I and 45 of List II was interpreted not to mean for the purposes of legislation only. The Supreme Court went on to say that the recommendations made by the commissions of inquiry were imperative to the efforts of the government to take legislative or administrative measures to eradicate the evil found or to implement the beneficial objects of the findings of the commissions.
Though the Central Government has no power to legislate on the matters contained in the State List, it is allowed to order an inquiry into any of these matters. In the case of State of Karnataka v. Union
of India3 it was held that the scope of inquiry under such a law will cover all matters which are ancillary to such inquiry. However legislation is ruled out. The view was reinforced in this case with reference being made to entry 97 of List I read with Article 248 which deal with the residuary powers granted to the Centre. The Supreme Court in Dalmia's case further justified this power given to the Central Government by saying that the mere fear that the wide and discretionary power would be misused was not enough to deny the existence of the power itself as discretion could not be taken to mean discrimination.
The second ground of attack in the Dalmia case , which was that appointment of commissions under s.3 of the Act amounted to excessive delegation, was also rejected by the Supreme Court. The 1 2 3
J.S. Sarkar, Commissions of Inquiry: Practice and Principle, (Ashish Publishing House, New Delhi, 1990) at p.5 Ram Krishna Krishna Dalmia Dalmia v. v. Justice Justice S.R. Tendulkar endulkar,, AIR AIR 1958 SC 538. 538. State of Karnataka v. Union of India,AIR 1978 SC 68.
Supreme Court refused to accept that such an appointment was tantamount to the usurping of judicial powers and delegation of essential legislative functions.. The rationale behind the rejection was that firstly as the Act laid down the policy of the legislature, the core functions were not being delegated and that secondly there was no encroachment on the powers of the judiciary as there was no adjudication but only fact finding involved in the whole process of inquiry. As the commission had no power to pass definitive and enforceable decisions, even when presided over by a sitting judge of the High Court or the Supreme Court, the commission cannot claim to be a judge nor can the proceedings said to be judicial.
Who can appoint commissions
The Central Government can appoint commissions of inquiry to investigate matters contained in all three lists of the 7 th Schedule whereas the State can do so only with respect to matters contained in the State and the Concurrent Lists of the 7 th Schedule to the Constitution. The appointment need not necessarily be only for legislative purposes but can be for administrative and other purposes as well. Once the Central Government has appointed a commission with respect to one matter, the State Governments cannot institute another commission to look into the same matter. The same holds for a situation in which the State Government institutes the commission except in cases where the Centre feels that the scope of the inquiry has to be extended to two or more states. The words 'same matter' mean the same subject matter against the same persons in the same time period, as is required to invoke the doctrine of res judicata. judicata .4
The leading case in this matter is the case of State of Karnataka v. Union of India . The facts of this case case are are that that the the Cent Centra rall Gove Govern rnme ment nt appo appoin inte ted d the the Grov Grover er Comm Commis issi sion on to inqu inquir iree into into irregularities alleged against Devraj Urs who was the then Chief Minister of Karnataka. However Urs had preempted the Central Government by appointing a commission earlier. He then proceeded to file a suit under Art. 131 and a writ petition claiming that the appointment of the commission by the Centre was illegal. Both the suit and the writ petition were dismissed by the Supreme Court on the basis that the scope of the two inquiries were very much different as the scope of the Central Commission was much broader. It was also pointed out as was in Bakshi Ghulam Muhammad's and K.B. Sahay's cases that it was inconceivable that a commission of enquiry should appointed by the cabinet against the Chief Minister or that the minister appointed the commission against himself. Ultimately, however, the appointment or otherwise, of a commission will depend on the subjective sati satisf sfact actio ion n of the the appr approp opria riate te gove govern rnme ment nt and and no othe otherr auth author orit ity y or cour courtt can comp compel el the the appropriate government to act to the contrary. 4
Supra note 1.
When can the appointment be made
The appointment can be made on definite matters of public importance by a notification in the Official Gazette. There are two reasons as to why this notification in the Official Gazette has to be made. Firstly it is to bring to public knowledge the appointment of the commission and secondly to authen authentica ticate te the conten contents ts of the notific notificatio ation n to preven preventt any further further disput disputee in that that regard regard.. In
Sambunath Jha's case 5 the court stated that the publication of the notification in the Official Gazette is an imperative requirement and cannot be dispensed with.
Although there is no provision for appeal in the High Courts or the Supreme Court when it comes to the appointment or non appointment of commissions, the notification appointing the commission can be challenged as being mala fide or ultra vires beyond the scope of the Act. In Kunju's case the notification was struck down as neither the original notification nor the authenticated copy showing order for issuing the notice in the name of the Governor, could be produced. It was held that the publication of the notice in the Gazette in proper form must be strictly proved by producing the Gazette or at least from the official record. In Karunanidhi's case6 when the signature on the notification was that of the Cabinet Secretary and not that of the departmental secretary, the Supr Suprem emee Cour Courtt refu refuse sed d to quas quash h the the notic noticee as Rules Rules of Busi Busine ness ss are disc discre reti tion onar ary y and and not not mandatory and evidence can be produced to prove that proceedings were conducted according to the constitution and the rules. The presumption of the courts is that official acts are done in the proper manner and the burden is upon the person making the allegation of irregularity to prove the same.
In Dalmia's case 7 the court stated that there is a presumption of constitutionality of the notification which may be rebutted by showing it to ultra vires, mala fide, vague and not on a definite matter of public importance. No hard and fast rule exists to prove any of the grounds that can be used to rebut the presumption of constitutionality and the nature and extent of materials needed for this rebuttal depends on the facts and circumstances of each case. Political motive was alleged in State of
Jammu and Kashmir v. Buxi Ghulam Muhammad 8, in Jagan Nath Rao's case 9 and in Harekrishna notificationss stating stating that Mehtab's case. 10 The Supreme Court however refused to strike down the notification the dominant purpose of the appointment was not political rivalry but to maintain the purity and integrity of the administration. The matter may also be considered by differentiating between 5 Sambunath Jha v. K.P. Sinha, AIR 1972 SC 1515. 6 M. Karunanidhi v. UOI, AIR 1977 Mad. 192. 7 Supra note 2. 8 State of Jammu Jammu and Kashmir v. Buxi Ghulam Muhammad , AIR 1967 SC 122. 9 Jagannath Rao v. State of Orissa, AIR 1969 SC 215 10 Harekrishna Mehtab v. C.M Orissa, AIR 1970 Ori. 175.
motive and purpose. If the object, purpose and aim of the notification is within the ambit of s.3 of the Act and is intra vires, then whatever the motive whether mala fide or bona fide, the notification remai remains ns vali valid d as foun found d in the the three three cases cases ment mentio ione ned d abov above. e. Howe Howeve verr in Kunju's Kunju's case11 the notification was quashed as the purpose of the commission was the dismissal of one minister when several other ministers were facing the same allegations. On the contrary in Dalmia's case the notification was not quashed even though the inquiry was against nine companies headed by Dalmia as there was reasonabe classification based on intelligible differentia having rational nexus with the object and purpose of the notification.
It is also imperative that the notification under s.3 off the Act must refer to a definite matter of public importance. Definite matter does not entail particulars of time, place or person as in a charge sheet. It is necessary that the subject matter of the inquiry be clear and definite. The commission is inquisitorial and not accusatory and it is the business of the commission to find out whatever materials are available in connection with the subject matter of the inquiry. In Dalmia's case the court stated that the word definite is opposed vague and means definite, distinct and precise subject matter which may appear in the notification. It was also stated that it is not necessary to cite all instances and particulars. It is also not necessary to name the person or persons involved as long as the the pers person on or grou group p has has been been clearl clearly y defi define ned. d. The inqu inquir iry y has has to be on a matte matterr of publ public ic importance. This does not mean that there should be some public benefit involved. Any conduct on the part of a person, group or company the prejudicially affects public well being can be termed to be of public importance. It is also to be noted that public importance and public agitation have no connection It is left to the discretion of the Government as to whether the matter is of public importance or not. This was held in State of Jammu and Kashmir v. Ghulam Muhammad . Thus courts have more control over the publication of the notification than on the purpose of the notification. 12
The appropriate Government has the sole and exclusive discretion to appoint one or more members of the commission and where the commission is comprised of more than one member, one of them maybe appointed the chairman thereof. The appropriate Government is at liberty to fill up any vacancies vacancies in the commission commission from the time of its appointment appointment to the time of the submissio submission n of the report. However if the vacancy is not filled the remaining members of the commission may proceed with the task in order to ensure continuity and prevent delay. When a new member is appointed or an existing member either resigns or expire, the inquiry continues from that point onwards and there is no need for a new inquiry to be instituted. It is always important that the government should 11 P.K. Kunju v. State of Kerala, AIR 1970 Ker 252 12 Supra Supra note note 1 at at p.7
appoint competent and impartial persons with experience and knowledge in the field of inquiry. inquiry.13
Similar to the appointment of the commission, the termination of the commission may be made by the appropriate Government by an official notification in the Gazette from the date notified at the sole sole discret discretion ion of the said said Govern Governmen ment. t. Howeve Howeverr when when the commis commissio sion n was appointe appointed d by a resolution of Parliament or legislature, it can be terminated only by a resolution of Parliament or legislature. Termination cannot be questioned by commission, court or any other authority as both appointment and termination are at the exclusive discretion of the appropriate Government. 14
13 Supra Supra note note 1 at at p.9 14 Supra Supra note note 1 at at p.10 p.10
Powers and Functions of Commissions of Inquiry Subsequent to its appointment under s.3 of the Act, the Commission has the power and jurisdiction to inquire into any definite matter of public importance and to carry out any such function as is directed in the Notification. The inquiry is restricted to matter of fact and not of law. This does not bar the commission from disposing off matters such as the admissibility of evidence, production of documents or the claim of privilege. The function of the commission is to find facts or real truths as far as as possible and not merely legal truths. The commission is thus a fact finding body entrusted with with the task of giving giving its honest honest and unbias unbiased ed opinio opinion n on the matter of public public import importance ance mentioned in the notification.15
There is no plaintiff or prosecutor in an inquiry nor is there a defendant or accused and there is no lis or charge to be adjudicated by the Commission by any definitive judgment or ordr. Its function is only to inquire and report for information to the appropriate Government to take such action as it may, in the circumstance, think fit. As observed in the Statesman case, 16 the function of the Commis Commissio sion n is inquis inquisito itorial rial rather rather than than accusat accusatory ory or judicia judicial. l. The primar primary y functio function n of the Commission is to act as adviser to the Government and submit report and recommendations for future on the materials available and not to indict or charge any person or group of persons. Inquiry is also made on whether allegations should be established or the person's name should be cleared as held in K.B. Sahay's case17 . This is often necessitated by the smear campaigns carried out by politicians on their rivals. As the court in Dalmia held, the function of the commission is no less importa important nt than than that of the courts courts and while courts courts dealt dealt with with private private interest interest litiga litigatio tion, n, the commissions dealt with matters of pubic interest.
The words 'such other functions' which often find mention in the Notifications give authority to the Commis Commissio sion n not only to inquir inquiree into into the facts facts but also to make make recomme recommenda ndatio tions ns for future future legislation or administrative corrections on the basis of the facts found. However this power of recommendations does not include the power to recommend penal action. action .18
Though the commission is not a court it has been accorded some powers that are normally accorded to civil courts in order to enable the commission to function properly and effectively. Under s.4 of the Act, the Commission has the power to summon and enforce the attendance of any person from 15 Saha Sahara ray y, Administrative Law and Tribunal, Tribunal, (Eastern Law House, Calcutta, 1987), at p.34 16 The Statesman v. v. Fact Finding Committe, Committe, AIR 1975 Cal 14. 17 K.B. Sahay v. Commission of Inquiry, AIR 1969 SC 258. 18 Supra Supra note note 1 at at p.13 p.13
any part of India, to require the discovery or production of documents, to receive evidence on affidavit, to requisition any public document, to issue commission for the examination of any witness witness or document and in any other matter which may be prescribed prescribed by the rules. These powers are given to the Commission automatically as soon as it is appointed.
When there is a situation in which the conduct and reputation of a person or a group of persons are involved, additional powers to enlist the help of the criminal court as mentioned in section 5, may be be noti notifi fied ed by the the Gove Govern rnme ment nt unde underr s.5( s.5(1) 1) to facil facilita itate te the the disc discha harg rgee of func functi tion onss by the the Commission. S.5(2) makes penal provision for omission or refusal to furnish information under ss.176 and 177 of the Indian Penal Code. S.5(3) of the Act enables the Commission to empower any officer officer below the rank of Gazetted officer for search and seizure seizure subject to the provisions provisions of s.100 of the Code of Criminal Procedure. Under s.5(4), the Commission has been declared a civil court when any offence under section 175 I.P.C. which penalises intentional omission to produce or deliver any document when there is a legal obligation to do so.
19
The Commission is also given the status of a civil court for the offences of refusal to take oath under s.178, refusal to answer questions when legally required to under s.179, refusal to sign a statement under s.180 and intentional delivery of insult under s.228 of the I.P.C. These offences have to be committed in view and presence of the Commission. The Commission, may, after recording the facts constituting the offence and the statement of the accused forward the case to a Magistrate having jurisdiction and the Magistrate shall proceed to hear such a case under s.346 of the Code of Criminal Procedure. Similar to the powers of the civil court given to the Commission, these powers too are accorded to facilitate the efficient functioning of the Commission. 20
As the Commission of Inquiry is not a court, the Contempt of Courts Act is not applicable. To stave off public criticism by jilted political parties and public officials, the 24th Law Commission Report 21 suggested some amendments to the Act which formed the basis for s.10A of the Act. As per the provisions of this section a complaint may bee filed by the public prosecutor under s.199(2) of the Cr.P Cr.P.C. in case of defamation or libel to t o bring the commission or any of its members into disrepute.
Regulation of procedure
The Act grants the Commission with the unique privilege of not being guided by the laws of civil or criminal procedure. Even the provisions of the Evidence Act or not applicable. Instead as per the 19 Supra Supra note note 1 at at p.14 p.14 20 Supra Supra note note 15 at at p.36 p.36 th 21 24 Law Commission Report F ound at www.lawcommissionofindia.nic.in
stipulations of s8 of the Act, the Commission is empowered to regulate its own procedure subject to the rules framed under s.12 of the Act. The rationale underlying the granting of this power to the Commission is twofold. Firstly it has to be kept in mind that every Commission will have a differe different nt purpos purposee and having having to follow follow similar similar procedure procedure for all these these purpo purposes ses will will lead to inefficiency and secondly the commissions are called upon to decide questions of fact and to avoid the legalism and formalism of courts. The commission however while framing the procedure has to follow the principles of natural justice, which form the basis of the civil and criminal procedures and the Evidence Act. In Nagendranath Nagendranath Bora's case 22 it was decided that the question with regard to the violation of any of the principles of natural justice by the procedure framed by the commission, should be determined by the courts not on the basis of any preconceived notions but in the light of statutory rules. It is however to be noted that the Commission and not the court, is the final authority to decide on the question of natural justice underlying the regulation framed by it.
Nature and manner of inquiry
In order to understand the functions of a commission of inquiry it is necessary that we understand the exact nature of the inquiry and the manner in which it is carried out. It has been settled in
Dalmia's case that the commission is not a judicial body irrespective of whether it is chaired by a sitting judge of the High Court or the Supreme Court. Though it is deemed to be a court for the purposes of ss.4 and 5 of the Act, this only means that declared and deemed powers of civil court in respect respect of specifi specified ed provis provision ionss only only exclud excludes es such such power power in respec respectt of other other functi functions ons.. With reference to ss.19 and 20 of the IPC it has been held that the commission is not a court as a judge must be empowered by law to give definitive judgment. As it was stated in Dalmia's case the commission has no power to adjudicate in the sense of passing an order or a judgment which can be enforced proprio vigore but is merely to investigate and record its findings and recommendations without any power to enforce them. This view was affirmed in Dr. Baliram's case23 where it was held that the commission is not a court for filing complaint under s.195(b)(3) of the Cr.P Cr.P.C.
The second aspect that determines the nature of inquiry is the fact that the recommendations of the commission are not binding upon the Government. Thirdly the distinction between Court, Tribunal and Inquiry was laid down in the Statesman case . Court not only has the power to give binding judgments but also has the power to enforce them. A Tribunal must be constited under statutory authority, have a regular or permanent existence and exercise the power to hear and decide disputes within a definite jurisdiction. Inquiry on the other hand, whether appointed under a statute or not may may or may may not not arri arrive ve at any any conc conclu lusi sion on and and will will ofte often n be requ requir ired ed to make make a repo report rt or 22 Nagendranath Bora v. Commissioner of Appeal, AIR 1958 SC 398. 23 Dr. Baliram Hiray v. Justice Lentin, 1988 (4) SCC 419.
recommendation to some other government agency. Its procedure is investigatory and inquisitorial rather than accusatory and judicial.
The manner of inquiry is as follows. Subsequent to the notification Under s.3 of the Act and as soon as the venue and establishment are available , the commission will issue public notice inviting statements or information or memoranda from the members of the public in respect of the terms of the inquiry. This procedure is common to all commissions of inquiry regardless of the purpose of their institution. However when, at any stage of the inquiry, the commission feels that the r eputation of any person is involved, reasonable opportunity of being heard in the inquiry and to produce evidence, has to be given to that person as required by s.8B of the Act. The commission will then ask the investigating investigating agency to compile compile a report of the particulars particulars with regard to time, date, place, and persons persons involved involved in connect to the subject subject matter of the investigatio investigation. n. Notice will be then issued under s8B or s.8C of the Act, attached to which will be the complaint and the affidavit giving the list of witnesses and documents in support of the complaint. This notice also directs the respondents to submit their statements in support along with their affidavit.
24
The commission under s.4C has the power to dispose the case only on the evidence given in the affidavits. The complainants and the respondents may be directed to file as many affidavits as it takes to prove the respective cases. As the section is not subject to the CPC there is no right to cross examine the witness. This was decided in Buxi Ghulam Muhammad's case . It is the discretion of the commission to call or not to call formal witnesses to produce the documents. The order of witnesses should always be such that the complainant is examined first, especially if it is the Government.
24 S. Chak Chakrav ravert erti, i, Administrative Law and Tribunals, (The Law Book Co., Allahabad, 1988), at p. 202.
Relevance Relevance of Commissions of Inquiry
There is an understandable dislike for the commissions of inquiry instituted under s.3 of the Act, on the the part part of publ public ic serv servan ants ts and and poli politic tician ianss alike alike.. This This is beca becaus usee more more ofte often n than than not not thes thesee commissions never achieve results within the deadlines assigned to them, a re largely ineffective and a severe drain on the State's resources. Even in the scenario where the report is submitted, it is seldom seen that the Government takes any form of action based on the report as the report is not binding on the Government. The commission is only for the purpose of determining the facts of the subject matter of the inquiry and the punitive and compensatory powers are still with the courts. It has been often seen in the past that these commissions are appointed to quell agitation, to delay punitive action and to discredit political opponents. 25
The views expressed by Sir Alfred Butt in the Budget Leakage case in England come to mind when a criticism of commissions of inquiry is to be made. In his speech Sir Alfred Butt stated that he would have to suffer for the rest of his life from a finding against which there was no appeal, upon evidence which did not justify a trial and a method not open to bring out the true and full facts. An important criticism of commissions of inquiry is also that when there are methods of inquiry such as by the police, magistrate , intelligence, vigilance, parliamentary committees, Central Bureau of Investigation and departmental inquiries, it is highly discriminatory to appoint commissions of inquiry which irreversibly prejudice any further forms of inquiry. inquiry. 26
When the above criticisms are examined, it can be seen that they hold relevance with respect to the practical functioning of the provisions of the Act and not the Act itself. The working of the Act comes under justified criticism due to the misuse or abuse of the powers by the government, political parties, courts and the commissions themselves. However this does not mean that the situation is beyond redemption. Courts of law in India too are slow and ineffective in their functioning functioning chiefly due to the machinations machinations of clever parties and pleaders. pleaders. Commissions, Commissions, are thus no worse than the courts. In fact the commissions can be forced to speed up proceedings through the application of public pressure whereas the courts are immune to any such pressures.
The need for these commissions arises out of the public nature of the proceedings that they conduct or are supposed to conduct. Other forms forms of inquiry lack this public character. For example a 25 Supra Supra note note 21 21 26 Supra Supra note note 1 at at p.2
police inquiry is only an investigation into an alleged crime and not a public inquiry. The public nature of the commissions allows them to investigate a far wider range of irregularities than any of the traditional forms. Primarily Primarily these commissions commissions are needed to keep misuse of power, power, unethical unethical conduct conduct and other such undesirable undesirable aspects of public public administrati administration, on, in check. check. The purpose purpose of the commission is to determine facts, on the basis of which, unethical conduct can be condemned and stigmatized and unfounded rumours can be done away with in order to restore the confidence of the general public in the public administration. Even though these commissions have been misused in the past, it remains a fact that till date there is no better alternative to these commissions of inquiry to conduct an independent and impartial i mpartial inquiry.
Commissions of inquiry as found in India cannot be found anywhere else in the world. The reason for this is that these commissions are independent and impartial bodies solely instituted for the purpose of finding facts without any immediate object to penalise anybody. Though there is no appeal available against the findings of the commission, a notification issued for the appointment of the commission may be struck down by courts if they are found to be ultra vires or mala fide beyond the scope of the Act. Thus the criticism delivered in the Budget Leakage case does not hold good in the case of commissions of inquiry in India. Full procedural protection is accorded to the reputation and liberty of individuals even though these are not judicial proceedings. The individuals are accorded the opportunity to clear their names from any allegations in their interest and in the interest of the public. 27
The The rele releva vanc ncee and and impo import rtan ance ce of such such comm commis issi sion onss are are rein reinfo forc rced ed by the the fact fact that that the the recomme recommenda ndatio tions ns of these these commis commissio sions ns are very very useful useful to the Govern Governmen mentt in decidi deciding ng what what legislative or administrative steps have to be taken to remedy any adverse situation. There are two types of commissions as seen before. There are commissions which focus on specific areas such as the the Pay Commission and the Water Disputes Commission and there are commissions which are against public officials. The importance of the findings of both types of commissions are imperative for the Government to run the country in an efficient and transparent manner. As procedural safeguards are observed even when the conduct of a public official is under the scanner, the benefits of instituting these commissions outweighs the disadvantages that such institution has. has .28
27 Supra Supra note1 note1 at p.4 p.4 28 Supra Supra note note 21 21
Conclusion
This This rese resear arch ch pape paperr set set out out with with the the aim aim to exam examin inee the the statu status, s, func functi tion onss and and rele releva vance nce of commissions of inquiry. As far as the status of the commissions is concerned it has been judicially settled that a commission of inquiry is not a court. This is because the nature of the inquiry is inquisitorial and not adjudicatory. The commission only makes recommendations and findings. It does not issue decrees or orders that are enforceable and hence cannot be called a court.
When it comes to the appointment of the commissions, it is seen that under s.3 of the Act the appropriate Government, both at the State and the Centre, can appoint a commission of inquiry. inquiry. The condition condition to be met before appointment appointment is that the subject matter of the investigation investigation to be carried out by the commission should be of definite public importance. This means that the matter must have the potential to disrupt the confidence of the general public in the public administration. However no other authority apart from the appropriate Government has a say in the appointment and the termination of a commission of inquiry.
Though the commission has been held not to be a court, the Act grants some powers to the commission to facilitate the fact finding process in which it is engaged. Sections 4 and 5 deem the commission to be a court in order to help the commission penalise any person who refuses to divulge any information which is necessary for the progress of the inquiry. The commission has simi simila larr powe powers rs in resp respec ectt of refu refusa sall to take take oath oath and and to sign sign a stat statem emen ent. t. Foll Follow owin ing g the the recommendations of the 24th Law Commission Report, the members of the commission and the commission as a whole is protected from defamation and libel as per the procedure laid down in s.10A of the Act. It is also to be noted that under s.8, subject tp the rules formulated under s.12, the commission has the liberty to formulate and regualte its own procedure, which also has to follow the principles of natural justice.
Finally Finally the releva relevance nce of commissio commissions ns of inquiry inquiry arises arises out of the need for an imparti impartial al and independen independentt fact finding body. body. Though the nature nature of the inquiry is only inquisitorial, inquisitorial, the findings findings and recommendations of the inquiry are imperative in aiding the Government to remedy any irregularities in the administration, by means of legislative and executive measures. It is true that in the past commissions have been influenced by the prevalent political conditions. In conclusion it can be said that the mere possibility of bias cannot defeat the need for and the advantages of an independent unbiased inquisitorial body. body.
