Inquiry Commissions; Do They Serve Any Purpose

INQUIRY COMMISSION

(DO THESE COMMISSIONS SERVE ANY PURPOSE?) Om Prakash Yadav Liberhan Commission, which was constituted on 16th December, 1992 to probe into demolition of Babri Masjid, submitted its voluminous report to the Prime Minister after 17 years. About 90 Million rupees has been spent on it which saw 399 sittings and as many as 48 extensions. It was asked to give its report within 3 months. The report now would be tabled on the floor of parliament and is likely to trigger a debate. Perhaps some more committees would be required to study thousand pages report and thus unending process of logical conclusion is likely to start. The question is that will it serve any purpose now? Is it of any use now except that it may again vitiate political and social environment? The issue again came 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.

It is in this backdrop, an attempt has been made to understand intricacies and legal stand points of such Commissions in this article. CONSTITUTIONAL AND LEGAL ASPECT-such commissions are set up under Commission of Inquiry Act, 1952. Before this Act came into being, 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 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 Government to white wash the public anger, delay and diverts attention of both public and media. 1

Since Independence, hundreds of 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 Commissions are set up under retired Judges for obvious reasons. Section 4 the Act says 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. Helplessness is such that when any offence is committed in presence of Commission, it shall forward the case to Magistrate for trial. Appointment of retired Judges, as head of the Commission is very much suitable for Government. It is not merely a chance that one Judge has headed more than one Commission. 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 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 regarding AntiSikh 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 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.

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It is needless to mention that what has happened to these reports and how much amountspent 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 frustrating results of these Commissions. Similarly, Justice Kripal Commission 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. Millions spent for naught. After ‘tehelka’ expose, Phukan Commission was set up. Everyone saw the tape on television but 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 PuneMumbai and Shirdi unconnected with ‘Probe’. 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 him. Such allegations and incidents definitely erode public faith in such Commissions. In Bihar, one Justice Amir Das Commission was set up to probe into the alleged connections of political leaders with a banned outfit, Ranveer Sena in 1997. Till 2006, the Commission could hardly do anything except for some tours and recording of statements some leaders. It was finally wounded up in 2006. Similarly Ali Ahmed Commission was set up to look into excess withdrawal from treasury in 1996. What recommendations did it submit or what actions had been taken, hardly anyone knows. 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 again set up NN Singh Commission to re-investigate the matter again. In 2008 Sadanand Mukherjee( rtd Judge) commission was set up to probe into Kahalgaon Police firing, is still a non starter. Kosi flood was caused due to breach in embankment. The Government constituted Justice Rajesh Walia commission to probe into it. 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 3

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 Commission was looked into by two Judge Commission constituted in 1987, it gave its observations and said that Commission of Inquiry is‘ineffective and toothless’. COMMISSIONS AND INVESTIGATION-Ours criminal justice system is based on 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 State, as enshrined the Constitution? Criminal Procedure Code and entire Criminal Justice System is erected on this principle and perhaps it is due to this principle, that Judiciary and Executive have been completely separated in 1973. After almost every police firing or fake encounters, government sets up Commissions of Inquiry and tends to defer the problem for years. 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 then submits voluminous reports difficult to understand and implement. Moreover what is use of such reports, which themselves are not mandatory for Government to implement. Millions of rupees have so far been spent on these nearly futile exercises, but the investigating agencies are languishing in 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 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 spirit of Constitution itself. This type of public perception is detrimental for our democracy and Judiciary also. Judges should perform duty of dispensing judgments only and not do the work of investigation; otherwise the entire edifice of our institutions would start eroding and crumbling.

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