Legal, All about the Act

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This Blog is written by Anamika Singh from KIIT School of Law, Odisha. Edited by Prakriti Dadsena.

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INTRODUCTION

“Here then we have a body independent of the department whose decisions (subject to any challenge to the courts) bind the department. Moreover, while it is not a court of law, the body in question performs an adjudicative role close to that of the courts. Such an agency is a tribunal.”

The expanding role of the modern welfare state needs a good system of governance which enables the governments to ascertain certain facts from situations that develop, thus the government requires full and first-hand information. For this cause, they set up inquiries that probe into specific matters that concern the public and the Government itself.

Before the enactment of Commissions of Inquiry, Act, 1952, the government ordered public inquiry either by executive notice under the Public Service Inquiries Act, 1850 or by making ad hoc legislation. To meet the ever-growing need for ever-increasing demand for public inquiries by independent and impartial authority the procedure adopted by the government was found to be cumbersome and inadequate. Hence the need was felt that a suitable legislation be brought out on the subject, resulting in the introduction of the Commissions of Inquiry Bill, 1952 in the Parliament.

SIGNIFICANCE OF THIS DEVELOPMENT

More than two decades ago, there was a book written by Lord Hewart, an eminent British politician and judge, called ‘The New Despotism’ and this was followed by the establishment of a committee called the Donoughmore Committee. This Committee enquired into the exercise of certain ministerial powers and the wide powers that they have which might lead to the violation of human rights of citizens due to abuse and misuse of discretionary powers. The Franks Committee, which is a significant committee when studying about the birth of inquiry commissions is discussed, had similar views to the Donoughmore one.

In 1957 the Franks Committee was appointed by the British Lord Chancellor to study administrative tribunals and such procedures as the holding of a public inquiry. The committee declared that the work of administrative tribunals and of public inquiries should be characterized by openness, fairness, and impartiality, and their report applied these aims in great detail. The recommendations of the committee were largely accepted and resulted in the Tribunals and Enquiries Act of 1958.

Thus these two committees were landmark ones in the same study field. Other than to check the trampling of human rights, the perversion of justice and the denial of redress against the immense powers of the State and other such matters, they also looked into the growth of the tribunal system and whether it was doing well for the nations.

The Franks Committee, head by Sir Oliver Franks, had to make a choice between two conflicting attitudes, that of legal and administrative. It was also required of them to examine statutory tribunals and administrative processes including inquiry procedures. Their report observed that: “We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The essential point is that in all these cases Parliament has deliberately provided for a decision independent of the department concerned… And the intention of Parliament to provide for the independence of tribunals is clear and unmistakable”.

The Committee gave a few recommendations as follows:

1) Tribunals were to be remade in the image of the ordinary courts

2) Chairmen must be legally qualified

3) Following of proper procedure is must

4) hearings should be public

5) Right to legal representation and legal aid must be given

In brief, the Committee through its recommendations, to curb maladministration, by the application of procedural values of openness, fairness and impartiality, the Committee aimed to guide tribunals to an “ideal” type of adjudication.

OBJECTIVE

The Powers of the Commission are on the same level and of similar nature as the powers of a civil court when the case concerned is tried under the Code of Civil Procedure, 1908. The matters are as follows:

• To summon and enforce the attendance of any person from any part of India, and to examine him on oath.

• To require the discovery and production of any documents.

• To receive evidence on affidavits.

• To requisition any public record or copy of it from any office or court.

• To issue commissions for the examination or witness of documents.

• To carry out any other prescribed matters.

Other than these powers, there are also additional powers given to the Commissions of Inquiry, such as the power to require the furnishing of information even from the individuals that have claimed a certain privilege for the time being, if the Commission feels there is crucial information with that individual. Another is the power to enter any building or place where the Commission has reason to believe that there is evidence present such as documents or books of accounts.

IMPACT

In India, before the Commission of Inquiry Act was enacted, the Governments used to set-up committee and commissions by executive order. The Commissions of Inquiry Act provides for the appointment of commissions of inquiry and for vesting them with certain powers. Appropriate Commissions are formed when the Government deems it necessary, and if each house of the Parliament passes the resolution for the same.

STATUTORY PROVISIONS

It is for the purpose of making an inquiry into any matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly. Provided that where any such Commission has been appointed to inquire into any matter-

• No state government shall appoint another Commission to inquire into the same matter if the Commission by the Central Government is functioning. (Except in the case where the approval of the Central Government to do the same is taken).

• No Central Government shall appoint another commission while the Commission appointed by the State Government is functioning (except in the case where the Central Government feels the need of the expansion of the scope of inquiry to larger than one state).

The Commission comprises of one or more members appointed by the appropriate government, and one of the members shall be appointed as Chairman.

The Scope of the Commission of Inquiry has also been well described by Shri Das in the Kairon Inquiry Report. “The inquiry to be made by the Commission differs from civil litigation or a criminal proceeding before an ordinary court of law.

In the civil action, there is a plaintiff and a defendant and a lis or an issue between them which the plaintiff may choose to abandon. In a criminal case, there is the prosecutor and an accused and a charge which the prosecutor may withdraw, with or without the permission of the Court as prescribed in the CPC.

In an Inquiry under the Commission however there is no plaintiff or prosecutor, there is no defendant or accused and there is no lis or charge to be adjudicated. Therefore, in short, the commission is not expected and, indeed, is not competent to finally adjudicate upon any issue or charge or pronounce any judgment or order which is binding and enforceable.”

CASE LAWS

The Supreme Court emphasizes the importance of findings of a Commission of Inquiry in the case of Shri Ram Krishna Dalmia v. Justice SR Tendolkar and Ors. wherein it is stated that “The whole purpose of setting up a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own.

In our view, the recommendations of the Commission of Inquiry are of great importance to the Government in outer to enable it to make up its mind as to what legislative and administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view.”

The inquiry which received wide popularity was the “Mundhra Inquiry” which led to the resignation of the then Finance Minister. This inquiry held by a commission consisting of a single member, the former Chief Justice of the Bombay High Court, Mr. M. C. Chagla, related to certain investments of the funds of the Life Insurance Corporation of India alleged to have been improperly made.

In the case of V Jagannath Rao v. State of Orissa, there was a question that was put forth the Supreme Court, which was whether the inquiry instituted by the government related to the same matter which was already pending under a civil suit in the stage of First Appeal before the High Court, whether such a suit amounted to usurpation of functions of Courts of Law.

The court opined that “the inquiry and the investigation by the commission do not, therefore, amount to usurpation of the function of the courts of law.  The scope of the trial by the courts of law and the Commission of Inquiry is altogether different. In any case, it cannot be said that the Commission of Inquiry would be liable for contempt of court if it proceeded to enquire into matters referred to it by the Government Notification.

In appointing a Commission of Inquiry under S.3 of the Act, the Orissa Government is exercising a statutory power and in making the inquiry contemplated by the notification, the commission is performing its statutory duty.”

ANALYSIS

There is a practice of appointment of commissions in almost all countries. A number of jurists including Mood Phillips hold the view that the method of inquiry committee was originated in 1689. Keeton cites an instance of the appointment of a committee of inquiry in 1667 by the House of Commons, following the fall of Clarendon, to investigate how the King and his Ministers had spent taxes voted by Parliament.

In England, inquiries are held under the Tribunals of Inquiry (Evidence) Act 1 921, before which they were held by the Parliament. But this had shortcomings as an inquiry by parliament had to have some political influence. Although after the Act the Parliament inquiries are not totally scrapped and still are utilised in certain kinds of subjects, especially political matters.

Statutory inquiries are now so common in the United Kingdom that it is unusual to find a statute concerned with planning control or with the acquisition of land, or indeed with any important social service or scheme of control, which does not provide this machinery for one or more purposes.

In France and Italy, where there are special courts for administrative matters thus the need for special commissions of enquiry is not present. In Australia there is the Royal Commissions Act, 1923. In Canada there is the Inquiries Act, 1927. In the United States of America, the Inquiries are taken up by the Committee of the Congress and there is no special law or Act in force for the Inquiries are taken up by the Committee of the Congress and there is no special law or Act in force for the inquiries. A Committee of Congress has the power to examine witnesses on oath and to punish for its contempt.

CONCLUSION

The importance of Commissions of Inquiry can be briefly summarized in three points as follows:

1) The machinery of the government to inquire into a definite matter of public importance.

2) To collect such relevant material as it may and make a report to the Government, along with its own views and recommendations.

3) To inform the mind of the Government and to enable it to take such actions as it may in the circumstances think fit.

REFERENCE

[1] Law Commission of India, 24^th Report on the Commissions of Inquiry Act, (December 1962)

[2] Problems Arising Under Commissions of Inquiry Act Author: B. Sharma

[3] Committee on Administrative Tribunals and Enquiries Author: J. A. G. Griffith

[4] Central Inquiry and State Ministers’ Accountability Author: V.P. Bharatiya

[5] Commissions of Enquiry in India Author: Om Prakash Motiwal