INQUIRY COMMISSION

(DO THESE COMMISSIONS SERVE ANY

PURPOSE?)

Om Prakash Yadav

Justice M.S.Liberhan Commission which was constituted on 16th December,

1992 to probe the demolition of Babri Masjid, has submitted its voluminous
report to the Prime Minister after 17 years. About 90 Million rupees has been
spent on it. The commission saw 399 sittings and as many as 48 extensions were
given to it because originally it was asked to give its report within 3 months.
The report now would be tabled on the floor of parliament and likely to trigger a
debate on it. Perhaps some more committees would be required to study the
thousand pages report and thus the unending process of logical conclusion will
start. In India, there is hardly any inquiry commission on the report of which
concrete actions have been taken. The coming session of parliament will
perhaps again witness fresh round of allegations and counter allegation between
treasury and opposition benches.
It is in this backdrop, an attempt has been made to understand the intricacy and
legal stand point of such commissions in this article.

Keeping apart from such allegations and counter allegations, the issue has again
come to fore that ‘Is Inquiry Commission a substitute of criminal prosecution?
Do these Commissions serve any purpose? Is it not an eye wash? Are these
Commissions able to bring culprits to book? Etc. After all, they are putting in
enormous cost on public exchequer, the hard earned money of ours.
CONSTITUTIONAL AND LEGAL ASPECT-To understand the entire issue,
one has to discuss the Commission of Inquiry Act, 1952 itself. Before this Act
came into being, the Government used to order an inquiry by executive
notifications under Public Service Inquiry Act, 1850. Sometimes, they used to
enact adhoc and temporary legislations also. To meet the public demand for
impartial and judicial inquiries, the Government thought to come out with a

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comprehensive legislation, which resulted into passage of this Commission of
Inquiry Act, 1952 in 1952.
Since its enactment, the constitution of Inquiry Commissions has become a tool
for the Government to white wash the public anger and delay and diverts the
attention of both public as well as media.
Since Independence, more than a hundred Inquiry Commissions have been set
up, but a very few have served the purpose. Reasons are obvious. First, the
provisions enshrined in this Act are not of deterrent in nature and secondly, most
of the time the Commissions are set up under retired Judges for obvious
reasons. Section 4 the Act provides for powers and it is clear that the
Commission has no power to compel a person to adduce before it and give
evidence. It cannot pass verdicts or judgements which could be enforceable. The
helplessness is such that when any offence is committed in view of or presence
of Commission, the Commission shall forward the case to the Magistrate for
trial as provided in Criminal Procedure code.
The appointment of retired Judges, as head of the Commission is very much
suitable for the Government. It is not merely a chance that one Judge has
headed more than one Commission. The public perception is such that these
Inquiry Commissions are becoming post retirement placement schemes for the
favourite retired Judges.
UNENDING LIST OF COMMISSIONS- We have a long list of such
Commissions, which have made inordinate delay in submitting their reports.
Many of them have taken decades in so called’ conducting inquiries’ and even
then the report which was submitted were so voluminous that we required
another committee to find out ways to implement the recommendations. For
example, as many as ten Commissions or committees have so far been set up
with regard to the anti-Sikh riots in Delhi after the assassination of Mrs Gandhi.
First of all, Marvah Commission (Ved Marvah, Addl C.P.) was set up in
November, 1984. The Commission was about to finish the assigned task, but it
was abruptly wounded up in May, 1985 and a new Commission headed by
Justice Rangnath Misra was constituted and was asked to carry out the further
inquiry hitherto done by Marvah Commission. But surprisingly the terms of
reference was, to find out whether this was an organised riot only? This
Commission submitted its recommendations in August, 1986 and recommended
for setting up of three committees to do further work. Therefore; Kapur-Mittal
Committee in February, 1987, Jain-Banerjee Committee in November, 1987,
Potti-Rosa Committee in March, 1990, Jain and Agarwal Committee in
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December, 1990, and finally Justice G.T. Nanavati Commission in 2000 were
set up. Incidentally, the same Judge was made in charge to inquire into Godhara
incident. Nanavati has submitted first part of the report and final report is yet to
come. No one knows when this commission will complete its job and when
entire truth and facts related to this incident would be made known to all.

It is needless to mention that what has happened to reports and how much
amount have been spent on these exercises. Has any prominent leader been
punished so far? Many persons, against whom levelled charges were being
inquired into, have died. Such are the frustrating results of these Commissions
and Committees.
Similarly, Justice B.N. Kripal Commission of inquiry was set up on 13th July,
1985 to probe into the bombing of Air India Flight 182 Boeing 747 on 23rd June
1985 which led to crash of this plane into Atlantic Ocean leaving 329
passengers including crew dead. The Commission submitted its report after
extensive tours of countries like Canada, USA etc, but when the prosecution
began, nothing could be proved and none could be punished. The entire
‘investigation and inquiry’ went in vain. It is needless again, to calculate the
amount which was spent on such inquiries.
After ‘tehelka’ expose, one Phukan Commission was set up to look into it.
Everyone saw the tape on television and the then Government just to avoid
immediate legal course, set up this Commission. In May, 2005 the Newsweek
reported that Justice Phukan along with his wife and eight officials used IAF
plane and went to Pune- Mumbai and Shirdi. The Ministry later said that the
Judge was not entitled to use the military plane and it was made available to
him by the then government in order to influence the Judge. Such allegations
and incidents definitely erode public faith in such Commissions. The situation is
such every Government in power use this provision to oblige the retired judges.
In Bihar for example, one Justice Amir Das Commission was set up to probe
into the alleged connections of political leaders with a banned outfit called
Ranveer sena in 1997. After elapse of more than eight years, the Commission
could hardly do anything except for some tours and recording of statements
some leaders. It was finally wounded up in 2006. Similarly one Justice Ali
Ahmed Commission was set up to look into excess withdrawal in 1996. What
recommendations did it submit or what actions had been taken, hardly anyone
knows.

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Commission under Justice RCP Sinha and Justice Samsul was set up on
Bhagalpur communal riot in 1989. Reports were submitted in 1995. But when
the new Government came to power it set up NN Singh (retired Justice)
Commission to re-investigate the matter again. In 2008 one Commission under
retired judge Sadanand Mukherjee was set up to probe into the Kahalgaon
police firing. This commission is still a non starter vis-a-vis investigation of the
incidence.
When Kosi eastern embankment was breached on 18th August, 2008, there
were lot of allegations and counter allegations. The Government constituted a
Commission under Rajesh Walia, again a retired Judge to probe into it.
The question that every sensible citizen would like to ask is that, whether
Commission is a substitute of criminal investigation? How can a Judge be better
equipped to do forensic test, do scientific investigations than a professionally
trained police officer? Has the Commission power to make arrests to the
persons likely to tamper evidences? The effectiveness of the Commission or for
that matter the Commission of Inquiry Act was looked into by two Judge
commission, which was constituted in 1987, it gave its observations and said the
Act as ‘ ineffective and toothless’.
COMMISSION AND INVESTIGATION-Ours is the criminal justice
system, which is based on the twin pillars of investigation and dispensation of
justice. How can the Judiciary be asked to do the work of investigation, which is
the work of the State as enshrined the law of the land? The Criminal Procedure
Code and for that matter entire Criminal Justice System is erected on this
principle and perhaps it is due to this principle, that the Judiciary and Executive
have been completely separated in 1973, when the Code of Criminal Procedure
was amended. After almost every police firing or so called fake encounters, the
government sets up Commissions of Inquiry and tends to defer the problem so
years. The list of such commissions is long and still names are being added to it.
Once the commission is set up, public tends to forget the real issue and
Commission embarks on an unending process of investigation, inquiry and facts
finding. It took years and years in submitting the reports, which are so
voluminous that it again requires some committees to suggest measures to
implements the recommendations. What is the use of such reports, which
themselves are not obligatory and mandatory for the Government to implement.
Millions and millions of rupees have so far been spent on these nearly futile
exercises, but the investigating agencies are languishing in the same state for
years. Instead of modernising and equipping the investigating agencies, we go
on doing cosmetic make ups. Public perception is therefore that, if the
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Government wants to bury the truth, it sets up a Commission. Public memory is
short and it tends to forget everything. In the mean time these Commissions are
becoming a post retirement engagement for Judges. Ours is an independent
Judiciary and that is why Article 220 provides for restriction on practise by the
retired Judges. The idea is that there should not be any scope whatsoever, of
favour or disfavour by the serving Judges. By appointing the retired Judges in
these Commissions or for that matter in any other body is a clear cut violation
of the spirit of the Constitution itself. This type of public perception is
detrimental for our democracy as well as Judiciary also. Judges should perform
the duty of dispensing judgments only and not do the work of investigation;
otherwise the entire edifice of our institutions would start eroding and
crumbling.