The commission of inquiry under the Act in question constitutes an important instrumentality for

holding public inquiries into matters causing to the public mind. Some of the problems which
have arisen in relation to the C.I Act are discussed below.

Under S.3, the government has to form an opinion that it is necessary to appoint a commission of
inquiry to inquire into any definite matter of public importance. It has been judicially held that
the formation of the opinion of the government to appoint a commission of inquiry is subjective
and the government is not required it at this stage to hold a quasi-judicial inquiry in which any of
the parties concerned has any right of being heard. It is not necessary to recite the formation of
such opinion in the notification itself as its formation can be prove by evidence aliunde and by
affidavits field in the court .
It has been further held that a government is under no legal or statutory obligation to appoint a
commission to inquire into any definite matter of public importance. The question of appointing
a commission falls within the discretion of the government and none can compel the government
to appoint such a commission to inquire into any matter. Consequent upon the assassination of
Prime Minister Indira Gandhi, there were widespread riots in Delhi during October31 to
November10, 1984. A non-political organization concerned with the protection of fundamental
rights of the people filled a write in the Delhi High Court, seeking, inter alia, mandamus
directing the central Government to appoint a commission to inquire into the causes of the riots
and the role played by the police and the politicians therein. The court rejected the petition
holding that neither the government was under any legal or statutory obligation nor the
petitioners had any legal or statutory right to compel the government to appoint a commission of
inquiry even when there was definite matter of public importance. To the same effect is the
decision of the Kerala High court in Rajendran that the question of appoint of a commission
would arise only if, in the opinion of the government, it is found necessary to appoint one or
when the government is compelled to do so as result of the resolution passed in that behalf, either
by the Lok Sabha or by the legislative Assembly of the state concerned. The expression if it is of
opinion used in the subsection makes it abundantly clear that , unless compelled by the Lok
Sabha or the state legislative Assembly of the state concerned , the government has the discretion
to appoint a commission in terms of Section.3 of the Act ,depending upon its opinion

The above judicial view seems to be based on a literal interpretation of S.3, CI Act and is based
on the orthodox view of discretionary powers such as was entertained by the courts in the prePadfield, the courts have appointed activist stance and judicial view has undergone a change in
the common law world as regards the exercise of discretionary powers. A view more in tune
with the prevailing judicial thinking has been recently expressed by the Orissa High Court. When
more than one hundred persons died in Cuttack by consuming spurious liquor, the government
satisfied by merely holding an inquiry through an administrative officer into the grim tragedy.
People were not satisfied with such an inquiry and they wanted a judicial inquiry (the term is
used for a commission of inquiry headed by a judge). Accordingly, a public interest petition was
filed in the High court under Art.226 seeking a direction to the state government to appoint such
a body to enquire into the tragedy and the High Court accepted the petition and issued the
direction sought for even in the face of opposition by the government. The court based its
decision on two main grounds: (a) S.3, CI Act, confers not merely discretion pure and simple but
discretion coupled with duty. The word may can be interpreted as shall in certain situations.
When power is coupled with duty, its excise almost ceases to be discretionary and it becomes
mandatory, said the High Court. Accordingly, if there arises a matter of great public importance,
then the government is duty bound to institute an inquiry therein to ascertain facts so that
appropriate steps may be taken to avert such a tragedy in future.