POWER OF INVESTIGATION UNDER COMMISSIONS OF INQUIRY ACT, 1952

UNDER THE GUIDANCE OF:

Dr. PAWAN KUMAR MISHRA

BY:

GAURAV KUMAR
B.SC.LL.B.(Hons.)
6th SEMESTER
CUSB1513115007
2015-2020

SCHOOL OF LAW AND GOVERNANCE

CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA-823001

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 TABLE OF CONTENTS

S.no. Contents Pages

01. Preface 04

02. Introduction 05-06

03. Commissions 06-08

04. Commission of Inquiry 08-09

05. Functions of Inquiry 09-11

06. Scope of the Function of Commission of Inquiry 11-12

07. Commission of Inquiry: Appointment & Restriction; Terms of 12-14

Reference; Procedures

08. Power of Commissions 14-17

09. Legislative Control and Legal status of the Commission 17-20

10. Conclusion 21

11. Bibliography 22

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 TABLE OF CASES

(a). Border Security Force v Meghalaya Air 1989 Gau 81.

(b). J&K v Bakshi Gulam Mohd AIR 1967 SC 122.
(c) Karnataka v India AIR 1978 SC 68.
(d) Cf. Ram Krishna v. Tendolkar, A. 1958 S.C. 538.
(e) Cf. Jagannath v. State of Orissa, A. 1969 S.C. 215 (218).
(f) Krishna Ballah v. Commn. Of Inquiry, A. 1969 S.C. 258 (261).
(g) Shambhu v. Kedar AIR 1972S.C. 1515.
(h) Jagannath v. State of Orissa, A. 1969 S.C. 215 (222)
(i) Cf. Brajnandan v. Jyoti, A. 1956 S.C. 66.
(j) State of J.&K. v. Ghulam Mohammad, A. 1967 S.C. 122 (127).
(k) State v. Beri, A. 1968 Raj. 77 (78).
(l) Ramkrishna v. Tendolkar, A. 1958 S.C. 538 (545).
(m) State of Gujarat v. Consumer Research Centre, A. 1984 S.C. 652.
(n) Ibrahim v. Susheel, A. 1984 A.P. 699 (paras. 7-8, 28, 43, 47, 53).
(o) Sidha Raj Dhadda v Rajasthan AIR 1990 Raj 34.
(p) B Jegnathan v Tamil Nadu AIR 1990 Mad 69.
(q) Orient Paper Mills v India AIR 1979 Cal 114.
(r) Jan Sangharsha Manch v Gujarat AIR 1998 Guj 133.
(s) Madhya Pradesh v Ajay Singh (1993) 1 SCC 302, AIR 1993 SC 825.
(t) Sardar Malkeet singh v Uttar Pradesh 1993 All 343.
(u) T Fenn Walker V India. AIR 2002 SC 2679.
(v) Madhya Pradesh v Arjun Sigh, (1993) 1 SCC 51, AIR SC 1239.
(w) Badry v. D.P.P., (1983) 2 W.L.R. 161 (170) P.C.
(x) Brajnandan v. Jyoti Narain, (1955) 2 S.C.R. 955.
(y) R. v. Boundary Commn., (1983) 2 W.L.R. 458 (465, 474-75, 481, 483) C.A.

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 PREFACE

It is a matter of great pleasure for me to present this project on a very useful part of
Administrative Law that is the Power of Investigation under Commission of Inquiries Act,
1952. I quite appreciate the overwhelming response of my teacher the effort to this project had
provided me an opportunity to revise the different provisions of the part and bring it to up to
date. This project had been continued with considering different Legal provisions and case
laws.
This project is already been summarised in the format of an Abstract illustrating the different
contents so far included in this part.
Lastly, I appreciate the help and cooperation rendered by my teacher, Mr. Pawan Kr. Mishra
without which the project could not have been brought out in the present form.
My thanks are due to services which I got in identifying my project as for successful
completion.
Suggestions from the reader will be welcome and thankfully acknowledged.

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 INTRODUCTION
Abstract: The need to provide for specialised forums of dispute settlements that would
possess some expertise and policy commitment, and would be comparatively cheaper,
more expeditious and relatively free from technical procedures, finds its existence across
the well incorporated term ‘commission’. The commissions provided under the
constitution, created by statutes and government resolution or executive order, performs
recommendatory, quasi-judicial and administrative function howsoever. Indeed, the
objective to describe each of them functions initiate with the institution of inquiry or
investigation to inquire upon the matter to eradicate the evils in administrative and
legislative measures. The power to its proceedings has been well stretched under the
Commissions of Inquiry Act, 1952. While highlighting the context of this statute from
England to that of the India, its significance had been traced to a greater extent in matter
arising out of public importance and performances. The commission is subjected to the
resolution of the House of People or Legislature of the state as the case may be for its
formulation, entitling it to investigate facts and record its findings thereon rather than to
continue with the judicial or quasi -judicial inquiry. The working of the commissions
invokes itself with the ancillary powers, without usurping judicial powers belongings to
the courts. The various Sections of the Act deals with the power of investigation by the
commission, additionally illustrating its comparability towards the functioning’s of Civil
Courts. Further, the paper also enlightens the legal status and judicial review as a part of
the concept to be looked on.
The process to inquire on any subject matter or its identification requires an inquiry to be done
in that regard. Along with the meaning as what had been mentioned under S. 2(g) of Criminal
Procedure Code, 1973 this term ‘inquiry’ has it better figure inside the hall, but a more suitable
inference can be drawn in order to understand its gravity from the perspective of the said
administrative Law. That can be well understood if one will seek its attention towards the
Commissions of Inquiry Act, 1951. Inquiries under the Act may be instituted into individual
grievances, as the same was cited in Crichel Down case in Britain. Or, the Act may be used to
inquire into serious shortcomings in administration — e.g. the Denning Inquiry into the
Profumo-Keeler affair and the inquiries conducted in connection with the LIC-Mundhra
scandal. While In India, ad hoc inquiries—which is their popular description—are more likely
to be used for the latter two purposes, though in discussing their utility and limitations we
cannot exclude any other purpose from consideration.

THE EMERGENCE of the technique of inquiries and investigations has been one of the most
striking developments of the modern administrative process. The ever-expanding role of the
modern state in the welfare activities of its citizens has necessitated establishment of a system
which would enable the governments to ascertain facts of the given situation and have full
information about it. For, if this method does not completely eliminate the scope of error, it

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does help in minimizing it. The government has to have a first-hand information to take
effective remedial measures. Although there are numerous enactments which authorizes the
government to institute enquiries, the statute par excellence dealing with the subject matter is
the Commissions of Inquiry Act 1952. Under the Act, various commissions have been
appointed to investigate into matters of diverse nature. Section 3 of the Commissions of Inquiry
Act makes it clear that a Commission of Inquiry may be appointed by the appropriate
Government for the purpose of "making an inquiry into any definite matter of public
importance and performing such functions and within such time as may be specified in the
notification." The Act confers on the Commissions constituted under it wide powers which
include, in addition to those of a civil court, powers to require any person, subject to any
privileges he may claim under the law, to furnish relevant information on the subject matter of
the inquiry and to enter any building and seize any books of accounts or documents or take
extracts or copies therefrom. As to procedure, according to section 8 of the Act, "the
Commission shall, subject to any rules that may be made in this behalf, have power to regulate
its own procedure (including the fixing of places and times of its sittings and deciding whether
to sit in public or in private) and may act notwithstanding the temporary absence of any member
or the existence of a vacancy among its members." During the course of the working of the
Act, numerous shortcomings and problems were noticed. The Central Government requested
the Law Commission of India to undertake a study of the Act and make recommendations to
introduce changes in it. As a, result the commission submitted a comprehensive report1 dealing
with the matter. On the basis of this report, the government introduced numerous amendments
in the Act in 1971. This proved to be a major overthrow of shortcomings which was lingering
in the course of its functioning. And finally, it has its workings and achievements with the aims
& objectives as mentioned under the Commission of Inquiries Act, 1951.

COMMISSIONS
In addition to tribunals and quasi-judicial authorities like the Securities Appellate Tribunal
(SAT), there are commissions, some of which have to act quasi-judicially in certain matters.
All commissions, except the Monopolies and Restrictive Trade Practices Commission
(MRTPC) and the Election Commission (EC) perform purely recommendatory functions. The
MRTPC and the EC act as tribunals in certain situations. The MRTPC was abolished with the

1
Report on The Commissions of Inquiry Act, 1952 (24th report) (1962). Parallel proceedings

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coming into force of the Competition Act, 2002. Under this Act, a new commission called the
Competition Commission has been set up.2 Two more Commissions have now been added,
which have powers of adjudication and of giving binding decisions. They are the Electricity
Regulatory Commission under the Electricity Act 2003 and the TRAI under the Telecom
Regulatory Authority of India Act 1997.

Commissions are of three types:

(a) Commission provided under the constitution;

(b) Commissions created by statues; and

(c) Commissions created by government resolution or executive order.

An instance to look above in detail are as follows:

(a) Commissions under Constitution3- The Constitution provides for following commissions:

(i) National Finance Commission;

(ii) Election Commission;

(iii) Commission on official Languages;

(iv) Union Public Service Commission and State Public Service Commissions;

(v) Commission for Backward Classes;

(vi) National Commission for scheduled Castes and Scheduled Tribes.

(b) Commissions created by statues-

(i) MRTPC created by the Monopolies and Restrictive Trade Practices (MRTPC) Act 1969;

(ii) Press Council under the Press Council Act 1965;

(iii) Inquiry Commissions under the Commissions of Inquiry Act 1952;

(iv) National Commission for women under the National Commission for Women Act 1990;

2
Section 7 (1), The Competition Act 2002.
3
Article 280, Article 324, Article 344, Article 315, Article 340, Article 338 (65th Amendment Act, 1990),
Constitution of India.

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 (v) National Commission for Minorities under the National Commission for Minorities Act
1992;

(vi) Human Rights Commission under the Protection of Human Rights Act 1993;

(vii) National Commission for Backward Classes under the National Backward Class
Commission Act 1993;

(viii) Competition Commission under the Competition Act 2002;

(ix) Electricity Regulatory Commissions under the Electricity Act 2003;

(x) TRAI under the Telecom Regulatory Authority of India Act 1995;

(xi) IRDA under the Insurance Regulatory and Development Authority Act 1999.

(c) Commissions under Government Resolution-

(i) Planning Commission; and

(ii) Law Commission.

Of the constitutional commissions, National Finance Commission, Commission on Official

Languages, Public Service Commissions, and National Commission for Backward Classes
perform purely recommendatory functions. Only the Election Commission has some regulatory
as well as adjudicatory functions. We consider this here in some detail. We also examine
composition and objectives of the commissions administrative functions. Statutory
commissions described here lack coercive powers, though they are of great moral authority.
However, we do not consider commissions created by government resolutions, because they
perform purely recommendatory functions.

COMMISSION OF INQUIRY

Inquiries and investigation are important methods of acquiring information. Such information
is needed as feedback for policy making by the government. It is also a source of information
for people. Various statues provide for such inquiries and investigation.4 Parliament enacted
the commission of inquiry Act 1952, which authorises the Central and state governments to
appoint inquiry commissions to make inquiries in matters of public importance. This is a
Central legislation enacted under the Constitution, Sch VII, List I, entry 45, and List III, entry

4
Section 15 and 15-A, The Industries (Development and Regulation) Act 1951; s 45-N, The Reserve Bank Act
1934; ss 235 and 237, The Companies Act 1956 etc.

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45. Under entry 94 of List I, Parliament has power to legislate for inquiries into matters
pertaining to List I and under entry 45 of List III, it has power to legislate for matters pertaining
to Lists II and III. The Commissions of Inquiry Act gives power to the Central Government to
appoint a commission of inquiry, to make inquiry into any matter relatable to any of the entries
enumerated in List I or III. The Act empowers state governments to appoint inquiry
commissions, to make inquiry into any matters relatable to any of the entries enumerated in
List II of Sch VII.5 It was held that a state government could appoint a commission, to inquire
into the cause of disturbance and the circumstances, under which the Border Security Force
(BSF) open fired.6 The Central Government can appoint a commission of inquiry to inquire
into a matter falling within the purview of a state government, if it falls within its plenary
legislative power, but a state government cannot appoint a commission of inquiry, to inquire
into the matters falling within the purview of the Central Government. The Centre has
appointed commission, to inquire into the conduct of the state ministers.7

FUNCTIONS OF INQUIRY:

(a) England – A tribunal may be set up under the Tribunals of Inquiry (Evidence) Act, 1921,
when both Houses of Parliament resolve that it is expedient so to do to inquire into “a definite
matter of urgent public importance”. In the past, such tribunals have been constituted to
investigate into complaints against the police; budget disclosure; loss of a submarine while on
diving trials; corruption in municipal administration, operation of a spy in the Admiralty; 8
misconduct of a Minister.9 No separate statutory authority is necessary for constituting such a
Tribunal, and it is not governed by the provisions of the Tribunals and Inquiries Act, 1958.

A Tribunal appointed under the foregoing Act has to sit in public, unless it would in the opinion
of the Tribunal be against the public interest to do so. The Tribunal has all the powers of the
High Court in the matter of attendance of witnesses, production of documents and the like and

5
Section 3, The Commissions of Inquiry Act 1952.
6
Border Security Force v Meghalaya Air 1989 Gau 81.
7
J&K v Bakshi Gulam Mohd AIR 1967 SC 122; Karnataka v India AIR 1978 SC 68
8
The Vassall case.
9
The Profumo Scandal or the Keeler case.

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witnesses appearing before the Tribunals have the same privileges and immunities as in a court
of law.

But a tribunal of inquiry differs from a judicial tribunal in that-

(a) While a judicial tribunal decides only on evidence presented to it by the parties to the
litigation, a tribunal of inquiry makes its own inquiries to find out the truth on the matter
referred to it.

(b) A tribunal of inquiry has no power to make any self-executing judicial order, such as the
imposition of any penalty or any award of damages; its only function is to report its finding to
the authority who created it.

(c) The procedure adopted by such tribunal is not necessarily but may be inquisitorial in
character.

(d) The object of setting up a tribunal or commission of inquiry is to investigate into facts, to
collect evidence and to make its findings available to the Government.10

(b) India- In India, similarly, provision for the setting up of a Commission of Inquiry to make
investigation into any matter of public importance has been made by enacting the Commission
of Inquiry Act, 1952. Either the Government of India or the Government of a State can avail
itself of the provisions of this Act, provided the conditions prescribed by s. 3 of this Act are
satisfied.

The relevant portion of s. 3(1) of this Act is

“ The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if
a resolution in this behalf is passed by the House of the People or, as the case may be, the
Legislative Assembly of the State, by notification in the Official Gazette, appoint a
Commission of Inquiry for the purpose of making an inquiry into any definite 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.”

It is evident from the foregoing provision that when a resolution in that behalf is made by the
Legislature, the appropriate Government is bound to appoint a Commission of Inquiry under

10
Cf. Ram Krishna v. Tendolkar, A. 1958 S.C. 538.

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this Act. Even in the absence of such resolution, the appropriate Government may appoint such.
Commission to make an inquiry into a matter of public importance within its own jurisdiction.11

There is nothing to bar a succeeding Ministry from advising the Governor to order inquiry
against an outgoing Ministry.12 Nor is there any legal bar to the appointment of an inquiry
during the pendency of a suit or prosecution where the subject-matter before the Commission
is different from that before the Commission.13

SCOPE OF THE FUNCTION OF COMMISSION OF INQUIRY:

1. The inquiry made by a Commission of Inquiry under the Act of l952 is not a judicial or
quasi-judicial inquiry. Its only function is to Investigate facts and record its findings thereon
and then to report to the Government in order to enable it to make up its mind as to what
legislative or administrative measures should be adopted to eradicate the evil found or to
implement the beneficial objects it has in view.

2. The Commission has no power of adjudication in the sense of passing an order which can
be enforced proprio vigore. For the same reason, even though the Commission may make
recommendation to the government as to what measures may be adopted, including punishment
for future action as a deterrent for delinquents in future, yet, not being a court, it cannot
recommend the taking of action by way of punishment of the wrongdoer for past acts, for
punishment for wrongs already committed can be imposed only by a court of law.

3. The purpose of the inquiry may be (a) to ascertain facts so as to enable the appropriate
Legislature to undertake legislation relating to a matter of public importance; or (b) to make an
administrative investigation into certain facts, e.g., an inquiry into wrongs alleged to have been
committed by an individual or a group of individuals, so that appropriate action may be taken
in the matter to eradicate the evil, or by way of a preventive in future cases. It is legitimate to
hold an inquiry for investigation of facts for the purpose of taking appropriate legislative or
administrative measures to maintain the purity and integrity of political administration in the
State.14

11
Cf. Jagannath v. State of Orissa, A. 1969 S.C. 215 (218).
12
Krishna Ballah v. Commn. Of Inquiry, A. 1969 S.C. 258 (261).
13
Jagannath Rao v. State of Orissa, A. 1969 S.C. 215; Shambhu v. Kedar AIR 1972S.C. 1515.
14
Jagannath v. State of Orissa, A. 1969 S.C. 215 (222); Cf. Brajnandan v. Jyoti, A. 1956 S.C. 66; State of J.&K. v.
Ghulam Mohammad, A. 1967 S.C. 122 (127).

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4. A matter does not cease to be of public importance merely because the Minister who is
involved has ceased to hold his office, or because there has been no public agitation over it.15

5. In order that a Commission may effectively carry out the foregoing powers, it may exercise
ancillary powers, e.g.(i) to collect materials; (ii) to record its findings on the facts investigated;
(iii) to express its views on the facts so found; (iv) to recommend future action, as an advisory
body; (v) to permit inspection of documents produced before it, to a party appearing in the
matter. 16

6. On the other hand, -The Legislature or the Executive cannot usurp judicial powers belonging
to the Courts by setting up a Commission of Inquiry.17 Hence, a Commission of Inquiry cannot
be set up with power “to recommend the action which should be taken as and by way of
securing redress or punishment”, the latter being functions of a court of law.” 18

7. Under 3. 7(1)(a), the Government has the discretion to discontinue a Commission if at any
time it is of the opinion that the inquiry was necessary; and the Court cannot quash such order
19
in the absence of mala fides. Since the Commission is simply a fact-finding body, without
any power of adjudication, there is no bar to its appointment pending any litigation.20

COMMISSION OF INQUIRY: APPOINTMENT & RESTRICTIONS; TERMS OF

REFERENCE; PROCEDURES

(i) Appointment

An enquiry commission can be appointed by an appropriate government when it is of the

opinion that it is necessary so to do, or if a resolution is passed by the House of the people or a
state legislative assembly, as the case may be. The appointment of the commission to be made
by a notification in the official gazette. Where a resolution of the House of the people or of a
state legislative assembly is passed asking for appointment of a commission of inquiry,
government is bound to make such appointment. Where a government is of the opinion that it
is necessary so to do, it may or may not appoint commission. However, no mandamus can be
issued to compel a government to appoint a commission where there is no resolution of

15
State of J. & K. v. Ghulam Mohammad, A. 1967 S.C. 122 (127).
16
State v. Beri, A. 1968 Raj. 77 (78).
17
Ramkrishna v. Tendolkar, A. 1958 S.C. 538 (545).
18
Ramkrishna v. Tendolkar, A. 1958 S.C. 538 (545).
19
State of Gujarat v. Consumer Research Centre, A. 1984 S.C. 652.
20
Ibrahim v. Susheel, A. 1984 A.P. 699 (paras. 7-8, 28, 43, 47, 53).

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legislature.21 It is so because the Act uses the word ‘shall appoint’ where a resolution is passed
by legislature, whereas it uses the word ‘may’ in other cases. A government may, however,
appoint a commission, even if a resolution to that effect is defeated is legislature.22

Matter to be inquired into must be of definite public importance and must be determinate,
distinct, and precise. It should not be vague. Period of duration of a commission must be stated
in the notification. If the notification does not contain it, the defect can be cured by issuing
another notification. Where a government refuses to extend duration of a commission, courts
do not intervene to compel it to do so, on the ground that investigation entrusted to it is not
over. Where the term of a commission expires, state government is not bound to extend the
duration.23

(ii) Restriction on Appointment

Where a single-member commission was appointed by a notification, it was held that

reconstitution of the commission by substituting another member in place of the existing
member was not permissible.24 Where a sitting judge of a High Court is appointed as a member
of a commission, it is held that the subsequent retirement of the member as a judge of the High
Court would not invalidate her appointment or continuance as a member of the commission.25
Justice Sri Krishna was sitting judge of the Bombay High Court when he was appointed as the
inquiry commission to investigate the events leading to the communal riots of Bombay in 1992-
93. There have been several instances of sitting judges having worked as
chairpersons/Presidents of inquiry commissions. The Supreme court, however, airs its opinion
on appointment of sitting judges as inquiry commissions in T Fenn Walker V India.26 The court
is of the view that appointment of a sitting judge is not impermissible, but where decisions of
a commission are subject to judicial review by a High Court or where the member is removable
by government, a sitting judge should not be appointed.

(iii) Terms of Reference

In Madhya Pradesh v Arjun Sigh,27 the Supreme Court made a close scrutiny of government
orders regarding determination of the terms of reference of the commission. Here, the Supreme

21
Sidha Raj Dhadda v Rajasthan AIR 1990 Raj 34; B Jegnathan v Tamil Nadu AIR 1990 Mad 69.
22
Orient Paper Mills v India AIR 1979 Cal 114
23
Jan Sangharsha Manch v Gujarat AIR 1998 Guj 133.
24
Madhya Pradesh v Ajay Singh (1993) 1 SCC 302, AIR 1993 SC 825.
25
Sardar Malkeet singh v Uttar Pradesh 1993 All 343.
26
AIR 2002 SC 2679
27
(1993) 1 SCC 51, AIR SC 1239.

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Court states that a government’s subjective satisfaction, that it is necessary to appoint a
commission, should be based on objective and real material and not merely on some vague
allegations or hearsay evidence, nor should it intend for any fishing inquiry. Where the original
terms of reference of a commission to inquire into the affairs relation to churhat lottery were
enlarged by a subsequent notification for inquiring whether any profit derived or money
collected through churhat lottery had been utilised for constructing a mansion, it was held that
the second reference was based on irrelevant materials and was, therefore, void.

(iv) Procedure of the Commission.

1. Subject to any rules made by the appropriate Government in this behalf, the Commission of
Inquiry may regulate its own procedure and to decide Whether it will sit in private or in public
(s. 8). The Commission has the powers of a civil court in respect of summoning of witnesses,
production of documents, receiving evidence on affidavits and such other powers as may be
specified in the notification creating the Commission (ss. 4-5).

2.. Since a Commission of Inquiry is an administrative body and not a judicial or quasi-judicial
tribunal,28 it is not bound by the rules of evidence. It is not trying any cause between contesting
parties and its proceedings are not as formal as in a judicial inquiry. Nevertheless, it must be
fair and impartial.

3. The Commission may proceed on affidavits and there is no scope for cross-examination of
any witness by a party likely to be affected by the proceedings of the Commission unless a
witness gives oral evidence.29

4. Since the proceedings before the Commission is not a quasi-judicial procedure, and the
Commission is a purely fact-finding body, there is no question of invoking the rules of natural
justice, except in so far as they are incorporated in the Act itself, e.g., in ss. 8B-8C of the Act,
or in the Rules made thereunder.

POWERS OF COMMISSIONS

A commission of inquiry has powers of a civil court, such as:

28
O’Connor v. Waldron, (1935) A.C. 76 (81).
29
Ibrahim v. Susheel, A. 1984 A.P. 699 (paras. 7-8, 28, 43, 47, 53).

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(i) summoning and enforcing attendance of any person from any part of India and examining
her an oath;

(ii) requiring discovery and production of any document;

(iii) receiving evidence on affidavits;

(iv) requisitioning any public record or copy thereof from any court or office;

(v) issuing commission for examination of witnesses or documents; and

(vi) any other matter, which may be prescribed.30

A commission ha power to require any person, subject to any privilege which may be claimed
by that person under any law for the time being in force, to furnish information on such points
or matters as in the opinion of the commission, may be useful for, or relevant to, the subject
matter of the inquiry. That person is deemed legally bound to furnish such information within
the meaning of s 176 and s 177 of the IPC.31 A commission or any officer, not below the rank
of a gazetted officer, especially authorised by the commission, may enter any building or place,
where the commission has reason to believe that any books of account or other documents
relating to the subject matter of the inquiry may be found, and may seize any books of account
or documents or take extracts or copies therefrom, subject to the provisions of ss. 102 and 103
of the Cr PC 1898.32

Can a commission be appointed to inquire into a matter that is alone the subject of a
criminal trial or suit in a civil court?

In various cases, courts have held that the subject matter of inquiry and that of criminal trial or
civil suit/ writ petition were not the same and, therefore, reference to a commission of inquiry
of such a matter was not bad.33 Whether the same matter, which is litigated in courts could be
referred to a commission of inquiry is disputable.

A commission is deemed a civil court when any offence, as described in ss. 175, 178, 179, 180
or 228 of the IPC, is committed in its view or presence. It may, after recording facts of the
offence and statement of the accessed, forward the case to a magistrate having jurisdiction to
try those offences. The magistrate shall proceed to hear the case against the accused, as if it

30
Section 4, The Commissions of Inquiry Act 1952.
31
Section 5(2), ibid.
32
Section 5(3), ibid.
33
Jagannath Raao v Orissa AIR 1969 SC 215; Sambhu Nath Jha v Kedar Prasad Sinha AIR 1972 SC 1515.

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had been forwarded to her under s 346 of the Cr PC 1973 (s482 of the Cr PC 1898).34 A
commission has power to utilise services of certain officers and investigation agencies for
conducting investigation pertaining to inquiry.35 It has also been given power to appoint
persons having special knowledge of any matter connected with inquiry as assessors, to assist
and advise it.

 Quasi-Judicial Function: Although a commission of inquiry has been given powers

of a court for some purposes, it is not a court, and its function is not judicial.36 The
reasons for holding it to be administrative are:

(i) there may not be any dispute before the commission;

(ii) it does not decide anything conclusively but merely gives its inding;

(iii) there is no appeal against its finding;

(iv) it does not follow the adversary procedure but is essentially inquisitorial in its approach.

The Act, however, says that any proceedings of a commission shall be deemed judicial
proceedings within the meaning of ss 193 and 228 of the IPC.37 In Lalji Haridas v
Maharashtra,38 the Supreme Court held that a proceeding, which was a judicial proceeding
within the meaning of s 193 of the IPC, was along a proceeding in a court for the purpose of s
195(1)(b) of the Cr PC 1973. However, s 1959(3) was subsequently amended to make it clear
that unless a tribunal was declared a court for the purpose of s 195 (1)(b), it would not be a
court. In view of this amendment, the Supreme Court held in Baliram Waman Hiray v Justice
B Lentin39 that a commission of inquiry was not a court for the purpose of that section. The
result is that while perjury before the commission is still an offence, the commission could not
give finding in terms of s 195(1)(b) or file a complaint.

It was held in Kiran Bedi v Committee of Inquiry40 that a commission of inquiry was a tribunal
was a tribunal for the purpose of art 136 of the Constitution, when it considered it necessary to
inquiry into a person’s reputation was likely to be prejudicially affected by the inquiry, and
gave to such person reasonable opportunity of being heard in the inquiry, and gave to such

34
Section 5(4), The Commissions of Inquiry Act 1952.
35
Section 5-A, ibid.
36
Ram Krishna Dalmia v Justice Tendolkar AIR 1958 SC 538, [1959] SCR 279.
37
Section 5(5), The Commissions of Inquiry Act 1952.
38
AIR 1964 SC 1154.
39
(1998) 4 SCC 419.
40
AIR 1989 SC 714, (1989) 1 SCC 494

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person reasonable opportunity of being heard in the inquiry and to produce evidence in her
defence . The Act further spells out the essentials of ‘a reasonable opportunity of being heard’
by ensuring following rights of a person to be heard:

(i) right to cross-examine a witness other than a witness produced by her or the commission;

(ii) right to address the commission; and

(iii) right to be represented by a legal practitioner or, with the permission of the commission,
by any other person.41

While performing such functions, the commission is supposed to act quasi-judicially.

 Punishment for insult to Commission

Section 10A was added by an amendment enacted in 1971, which provides penalty for acts
calculated to bring a commission or any member thereof into disrepute. By the Commissions
of Inquiry (Amendment) Act 1988, s 10(2) was amended to provide that a High Court might
take cognizance of such offence directly instead of the commission referring it to a court, as
was required under the original s 10(2). The Law Commission, which gave a report on
commissions of inquiry, opined that giving power to a commission of inquiry, opined that
giving power to a commission to punish for contempt might not be constitutionally permissible
in view of the fact that art19(2) of the Constitution of India permitted restrictions on freedom
of speech and expression in the interest of contempt of court, and since the commission was
not a court, punishment for its contempt might not be included within the scope of the
permissible restrictions.42 Actually, this objection is not very convincing. In fact, the
Commission of Inquiry Act ought to be amended, so that a commission presided over by a
sitting or retired judge of either the Supreme Court or a High Court is given power to punish
for contempt. A private member’s Bill, conferring on inquiry commissions power to punish for
contempt, had been introduced in the sixth Lok Sabha.43

LEGISLATIVE CONTROL & LEGAL STATUS OF THE COMMISSION

The Act Provides the government must lay a commission’s report before the House of the
People or a state legislative assembly, as the case may be, with a memorandum of the action

41
Section 8-C, The Commissions of Inquiry Act 1952.
42
The Report on the Commissions of Inquiry Act 1952 (24th Report), The Law Commission of India 1962, p 9.
43
B Sharma, ‘Problems Arising under Constitutions of Inquiry Act’, 26 JILI pp 160, 170 (1984).

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taken thereupon within a period of six months from the submission of report.44 The Act was
amended in 1986 to provide that a government may not lay a report before legislature, if it
satisfied that ‘in the interest of the sovereignty and integrity of India, the security of the state,
friendly relations with foreign states or in the public interest, it is not expedient’ to do so.45 The
government has to merely issue a notification to that effect46 and lay such notification before
the House of the People or the state legislative assembly, as the case may be. This amendment
was severely criticised as being against the canons of democracy. It also violated the people’s
right to information.47

The Legal status of the Commission can be illustrated as below:-

1. Not being a quasi-judicial body, the members of a Commission of Inquiry cannot claim that
absolute privilege from defamation which belongs to judicial and quasi-judicial authorities.48

2. Similarly, not being a court, the members of a Commission of Inquiry cannot, in the absence
of statutory protection, claim immunity from Contempt of court. But they cannot be held guilty
for contempt merely by reason of the fact that the Commission has been set up for inquiry into
some matter relating to which a suit or other proceeding is pending in a court of 18W, because
the scope of the Commission and the court are altogether different.49

3. Conversely, the law of contempt being applicable only to courts of Justice and to the judges
of such courts, and a Commission of Inquiry not being a court, a person cannot be convicted
for the offence of contempt of Court for offending utterances against a Commission of Inquiry,
in the absence of statutory provision in that behalf.50

4. It follows that a Commission of Inquiry, in India, cannot punish anybody under the Contempt
of Courts Act, for violating its own orders.51

5. As a statutory body, a Commission of Inquiry is subject to the writ jurisdiction of the High
Court under Arts. 226 and 227.52

44
Section 3(4), The Commissions of Inquiry Act 1952.
45
Sub-section (5) was added to s 3 by The Commissions of Inquiry (Amendment) Act 1986.
46
Section 5 (5), The Commissions of Inquiry Act 1952.
47
SP Sathe, The Right to Know, Tripathi, 1991, pp 36-37.
48
O’Connor v. Waldron, (1935) A.C. 76 (81).
49
Jagannath v. State of Orissa, A. 1969 S.C. 215 (222)
50
Badry v. D.P.P., (1983) 2 W.L.R. 161 (170) P.C.
51
Brajnandan v. Jyoti Narain, (1955) 2 S.C.R. 955.
52
Cf. Jagannath v. State of Orissa, A. 1969 S.C. 215 (217); Ramkrishna v. Tendolkar, A. 1958 S.C. 538 (541).

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Judicial review of orders of a Commission of Inquiry:

1. In the UK, it has been held that where a Commission of Inquiry is set up by statute, its acts
and orders would be subject to judicial review on grounds which are applicable to all statutory
authorities, e.g., ultra vires. Thus, the Court can and will intervene in the interests of the public
if it exceeds its powers as conferred by the statute, by doing something or refraining from doing
something not intended by the Legislature. It is the business of the Court to interpret the statute
and to enforce it against the statutory body. 53

2. The Court can also intervene on the ground that the exercise of its statutory power has been
unreasonable. Since, however, the function of a statutory Commission of Inquiry is only to
make recommendations as distinguished from any final decision or executive order, the Court
would be slow to interfere with any recommendation made by such Commission, on the merits,
i.e., on the ground that the Court might have made different recommendations. The Court
might, of course, intervene if it is shown that, on the materials before it, no ‘reasonable
commission’ could have come to such conclusion. But the onus lies upon the applicant heavily,
to establish such unreasonableness.

3. Another limitation upon the power of judicial review in such cases is that since the final
decision in the matter referred to a Commission lies with the Parliament itself the court cannot
take up the function of Parliament, to interfere with the conclusions of the Commission on the
merits; it can only interfere where the Commission has failed to carry out the instructions given
by Parliament while creating the statutory Commission.

4. In India, too, it has been held that the appointment of a Commission of Inquiry can be
challenged on the ground of ultra vires or mala fides.

5. S. 3(1) of the Commissions of Inquiry Act, 1952, has come up before the courts for
interpretation of the conditions specified in the above provision; and it has been held that when
an order constituting a Commission under this Act is made, the party into whose affairs the
investigation is directed may challenge the validity of the order on the following grounds, inter
alia.

(a) That the conditions specified in 5. 3(1) have not been fulfilled

53
R. v. Boundary Commn., (1983) 2 W.L.R. 458 (465, 474-75, 481, 483) C.A.

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(b) That the order is mala fide; but mere existence of political rivalry is not enough.54

The conditions specified in s. 3(1) are:

(i) In order to be a matter of public importance, it is not necessary to appoint a Commission for
making an inquiry under this Act or the popular House of the Legislature concerned has passed
a resolution to that effect. The Government has no discretion in the matter where such
resolution has been passed by the Legislature.

II. That the matter into which the inquiry is to be directed must be one of public importance.

(i) In order to be a matter of public importance, it is not necessary that there must be a public
agitation in respect of it or a public demand for inquiry. A charge of failure of duty against a
responsible public official is itself of public importance:

“It was of public importance that public men failing in their duty should be called upon to face
the consequences of their acts. It was certainly a matter of importance to the public that lapses
on the part of Ministers should be exposed and the cleanliness of public life, in which the public
must be vitally interested, was a matter of public importance. The people were entitled to know
whether they had entrusted their affairs to an unworthy man.”

“A Minister held a public office, his acts were necessarily public acts and, if they Were grave
enough, they were matters of public importance. It was alleged that the Minister had acquired
vast wealth for himself, his relations and friends by abuse of his official position and there
could be no question that the matter was of public importance.”55

(ii) Nor does ‘public importance’ necessarily mean that the matter must involve the public
benefit or advantage in the abstract, e.g., public health, Sanitation or the like or some public
evil or. prejudice, e.g., floods, famine or Pestilence or the like.

Quite conceivably the conduct of an individual person or company may assume such a
dangerous proportion and may so prejudicially affect or threaten to affect the public well-being
as to make such conduct a definite matter of Public importance urgently calling for a full
inquiry.

54
Cf. State of J. & K. v. Ghulam Mohammad, A. 1967 S.C. 122 (130).
55
Cf. Jagannath v. State of Orissa, A. 1969 S.C. 215 (217); Ramkrishna v. Tendolkar, A. 1958 S.C. 538 (541).

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III. The matter or the allegation into which the inquiry is to be directed be definite, as
distinguished from being vague.56

IV. The party affected may also contend that he should not have been singled out for the
purpose of the inquiry, where there were other people against whom similar allegations existed.

CONCLUSION

It is clear from the foregoing provision that the aim to bring the Commissions of Inquiry Act,
1952 is definitely to crush out the gaps of administrative and legislative measures, and yes
definitely it has proven itself in carrying out its aims to furnish out the issues related to utmost
public importance. Moresoever, the commissions enjoy certain immunities and privileges in
meeting this ends but the conflicts had arose in powers which has been conferred to it under
the statute itself. The jurisdiction though which is entertained by the Commission is of limited
nature and it do not enjoy the immunities like provisions of contempt of courts and proceedings
based on the admissibility of the evidence rather than findings of facts and admitting it to the
concerned authority or the government to get it resolved.

One instance also stood inside the picture that the High Courts have not found anything illegal
in continuation of parallel proceedings in the court as well as the in the commission. Although
it is desirable to say that it must be avoided seeing the complexity and the techniqualities of
the procedure to which one is subjected too. In order that commission process are not defied,
it is essential that the commission appointed under the Act must be provided with teeth. And
at the same time the commission must have the power to punish the persons for its contempt
so that its investigative and technical approach should not get wasted in the hands of usurpt.

56
Krishna Ballabh v. Commission of Inquiry, A. 1969 S.C. 258 (261).

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 BIBLIOGRAPHY

Books referred:

(i) Durga Das Basu and A.K. Nandi, Administrative law (Kamal Law House,Kolkata, 6th
edn., 2004).

(ii) SP Sathe, Administrative Law (Lexis Nexis Butterworths Wadhwa, Nagpur, 6th
reprint, 2012).

(iii) I.P. Massey, Administrative Law (Eastern Book Company, Lucknow, 9th edn., 2017).

(iv) C.K. Takwani, Lectures on Administrative Law (Eastern Book Company, 6 th edn.,
2017).

(v) H.W.R. Wade & C.F. Forsyth, Administrative Law ( Oxford University Press, Great
Clarendon Street, 10th edn.,2009).

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