PUCL Bulletin, May 2001

Inquiry Commission No Substitute
K.G. Kannabiran

All of us have become totally ineffective in politics; all underlying assumptions for regulating our political lives have disappeared. We believed that Governments represent people; that laws will be enacted towards a transformation of society; that the erring few will be taken care of by the criminal laws; that the Government constituted from among the representatives will lay down guidelines for the proper enforcement of laws; that the representatives of the people will ensure that the Government is disciplined and really does not turn arbitrary; that all the representative institutions and the Government are held in check and that we have impartial and independent judges. From all these persons we expect a measure of austerity and stoic simplicity, a style of life which will assure the people that they do not assume that they are a superior category of persons with an entitlement to rule the people. These assumptions suffered gradual erosion in the first 25 years of our political independence. The magnitude of erosion of governance was revealed with the imposition of Emergency in June 1975. Even the court, that impartial independent institution, succumbed to arbitrary power in June 1975.

It was under these circumstances that the Janata Government that came to power thereafter, appointed a number of commissions of inquiry under the Commissions of Inquiry Act 1956 to acquaint themselves with reasons for the large-scale erosions in all institutions and instrumentalities of the State at various levels and the choice of this course appeared to be appropriate for such large-scale and comprehensive investigation. The intention, obviously, was to reconstitute governance and not to review the Constitution, on the basis of the reports of various commissions of inquiry. This did not take place. But the habit of demanding a judicial inquiry as a political demand comes very mechanically. Such a demand has possibilities of acceptance by even an intransigent political Government.

Is the Commission of Inquiry Act a substitute for criminal prosecution? It is not. It is not part of the criminal justice system. Even if a sitting sessions judge is appointed under the Act, the powers wielded by him as a sessions judge will not be available to him. It is a method available to the Government to gather information with regard to a matter of public importance. It does not judge the issue as a court does. A commission of inquiry also cannot be a substitute for investigation under the provisions of the criminal procedure code. The State has a mandatory duty to investigate the crime and place the culprit before the court which alone has been entrusted with the power and the jurisdiction to forfeit life or liberty in accordance with the procedure established by law. The obligation to set in motion the criminal justice system on the occurrence of the crime can neither be substituted by any other device nor dispensed with.

The work of major commissions of inquiry such as the Shah Commission, Justice Gupta Commission, Justice Mathew Commission, Justice Bhargava Commission, and others did not deal with specific crimes. The terms of reference were much wider and general. They were to enable the Government to restructure administration and governance. Partisan politics by varied methods torpedoed the efforts. The Shah Commission recommendations, however, were sought to be implemented. The Janata Government formulated the Special Courts Bill before enacting it into a law. Care was taken to see that Parliament did not legislate political vendetta against Indira Gandhi and the persons who supported the Emergency by having the Bill referred to the Supreme Court for scrutiny and for its opinion. It had the clearance from Act.. In fact, the then chief justice of the court expressed the hope that "Parliamentary democracy will see its halcyon days when the law will provide for a speedy trial of all offenders who misuse public office held by them. Purity of ) public life is a desired goal at all times and in all situations, Emergency or no Emergency. " Clause 4 of the preamble to the act made its intentions clear. It was to be a permanent Act. It, for the first time, declared that the people who hold offices are trustees in whom people repose confidence and that these persons who hold such positions, should they commit breach of trust, will be offenders under the Act. When V.C. Shukla approached the Supreme Court under the provisions of this Act, the court pointed out that the special courts Act is a permanent measure. Despite the Preamble, the circumstances which this Act was passed and the pronouncement of the Court this act was repealed by parliament without obviously any debate and for strange reasons. In the statement of objects and reasons to the Repealing Act, Parliament was told that the Act was brought into force (a) to prosecute Indira Gandhi for refusal to appear before the Shah Commission and take oath and (b) the Delhi High Court had given 12 grounds for declaring the Shah Commission infructuous. Thus the statue was rolled back into oblivion in 1982.

We failed to lay down traditions of good Government. The Commission of Inquiry Act 1956 was popularized by the Janata Government and is now employed to beguile the public. That is when we find justices Thakkar - Natarajan wailing about the ineffectiveness of The Commissions of Inquiry Act and bemoaning the wastefulness of time and material resources in these futile exercises. These two Supreme Court judges were asked to inquire into the appointment of Fairfax Group Inc. to investigate into by certain companies and this instrument of investigation to a foreign investigative agency became a contentious issue in parliament. This led to the appointment of the two-judge commission in 1987. They found the 1956 Act "ineffective and toothless". They devoted one full chapter on the inadequacies of the Act. In the course of their proceedings they were confronted with scurrilous attacks on their work by some newspapers, and some persons would not respond to the summons issue by the Commission. They argued that as sitting judges they carry the contempt powers with them wherever they went on this kind of assignment. They also wanted summary powers of prosecution and punishment for refusal to comply with the orders of directions issued by them under the relevant provisions of the Penal Code. They wanted a deterrent punishment for willful disobedience of orders of a public authority. In this argument what has to be noted is their despair at the emerging trends. The attempt to reform and restructure Government and a administration ended in a dismal failure and this gave impetus to flouting of norms, administration aligning with or sponsoring and aiding criminals and through them commit crimes with impunity. The commissions set up to inquire into crimes, individual and collective, met the same fate.

The Commissions of Inquiry Act 1956 has no power to compel persons to come and give evidence before it. Its report or the evidence given before it is not relevant in a criminal trial. It has no power to give definite judgement. But it has its political uses in democracy. It can postpone political protest to the point of attrition. It helps whitewashing crimes and culpable negligence of the government and its agencies. For instance, custodial deaths of suspects have very often been given out as suicides while in police custody. The commission set up to go into the issues raised appointing Fairfax came to nothing. The commission headed by Mr. Jain to look into security lapses resulting in the assassination of Rajiv Gandhi came to nothing.

The Tehelka disclosures have become the preoccupation of the press and the electronic media. The ruling party, to escape the parliamentary responsibility of relinquishing power, has announced an inquiry by a sitting judge of the Supreme Court. How does a sitting judge make any difference if the mechanism provided by the Commission of Inquiry Act is not adequately equipped to investigate and punish the guilty? What is there to investigate further, except the tapes recorded by Tehelka. How is a judge sitting or retired whether of the high court or the Supreme Court better equipped or competent in investigating facts than an experienced police officer with a modicum of integrity? Has the commission of inquiry the power to arrest suspects to prevent them from tampering with evidence? Has the commission the power to prevent ministers or the public spirited men sponsored by these ministers from unleashing a PIL in the Supreme Court and stall the proceedings of the commission. Would it not be to make do with the existing machinery so that they may proceed with their business in the usual manner, register the crime, apprehend the accused and produce them before court and ask for police custody for further investigation for the conspiracy to cheat the government, by receiving kickbacks and thereby imperil the defence of the country. These are sufficient grounds for detention under the National Security Act. For very nominal reasons people are arrested in this country and prosecuted. Let us not forget that we have the recent history of a magistrate convicting a Prime Minister and his appeal is pending. Why this individual discrimination in favour of these? Why should there be a futile inquiry at enormous cost to the public exchequer, particularly when we have before us the unrewarding past experience of such exercises?

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