August 18, 2013

Purpose, Powers, Problems Critical analysis of Judicial Inquiry Commission in India

Judicial Inquiry Commission in India
To meet the ever growing need for ever-increasing demand for public inquiries by independent and impartial authority the procedure adopted by the government was found to be cumbersome and inadequate. Before Commission of Inquiry Act, 1952 came into being, the governments used to order an inquiry by executive notifications under Public Service Inquiry Act, 1850. Hence the need was felt that a suitable legislation be brought out on the subject, resulting in the introduction of the Commissions of Inquiry Bill, 1952 in the Parliament. Appointment of the judicial commission was within the rights of the State government / Central Government.

Judicial Inquiry Commission in India
Judicial Inquiry Commission in India
Basis for Judicial Inquiry Commission:
Commission of Inquiry Act, 1952: This Act provides for appointment of Commissions of Inquiry by the appropriate Government i.e. either by Central Government or State Government. This act was later amended in 1971 to give more powers.

Recommendations Report of the Commission:
  • The appropriate Government shall cause to be laid before  each House of Parliament or, as the case may be, the Legislature of  the State the report, if any, of the Commission on the inquiry made by  the Commission under sub-section (1) together with a Memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.
  • The State Government, the Central Government shall no  appoint another Commission to inquire into the same matter  for so long as the Commission appointed by the State  Government is functioning, unless the Central Government is  of opinion that the scope of the inquiry should be extended  to two or more States.

Powers of Commission.
The Commission shall have the powers  of a civil court, while trying a suit under the Code of Civil  Procedure, 1908, in respect of the following matters, namely 
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 (a) summoning and enforcing the attendance of any person  from any part of India and examining him on oath;
(b) requiring the discovery and production of any document.
(c) receiving evidence on affidavits ;
(d) requisitioning any public record or copy thereof from any court of office
(e) issuing commissions for the examination of witnesses or  documents
 (f) any other matter which may be prescribed.
Purpose of Judicial Inquiry:
  1. Making an inquiry into any definite matter of public importance
  2. Judicial probes are effective in conducting in-depth inquiries and unearthing the truth.

Procedure for Obtaining the Service of Sitting Judge for Judiciary Inquiry Commission:
  1. For obtaining the service of a sitting judge, the State government will have to send the request for a sitting judge to the High Court through its registrar. The registrar will in turn place the request before the Chief Justice.
  2. The demand for a sitting judge stems from the perception that an inquiry by a judge independent of the State government will be an impartial one.

Controversy over Sitting Judge and Retired Judge:
  1. Barring the popular perception of credibility, there will not be any special legal status for the judicial probe by a sitting judge, who is appointed by invoking the provisions of the Commission of Inquiry Act.
  2. Moreover, the government is not duty-bound to accept the judicial inquiry report, either by a serving of a retired judge, as it is recommendatory in nature.
  3. It is also worthwhile to mention here that the Judiciary in India is an independent system and that is precisely the reason why Article 220 restricts practise by retired Judges. The idea is that there should not be any scope, whatsoever, of favour or disfavour by the serving Judges.
  4. By appointing the retired Judges in these Commissions or for that matter in any other body tends to clearly violate the spirit of the Constitution itself.

Critics about Judicial Inquiry:
  1. Many call it 'eye wash' and other call it 'sponsored report'.
  2. No one came before the panel to give evidence in sensitive cases.
  3. By the time the commissions collect evidence, the issue would have died down and public will lose interest in the case. Even those who vociferously demanded judicial inquiry seemed to have lost interest in giving evidence and in the proceedings of the commission. They also failed to follow the functioning of the commission.
  4. Critics of commissions say that their recent history has been extremely spotty. Apart from taking inordinately long to deliver reports, they seldom achieve anything.
  5. Do these Commissions serve any purpose? Is it not an eye wash? Are these Commissions able to bring culprits to book? Are not Commissions of inquiry a waste of time and money?
  6. Since its enactment, the constitution of Inquiry Commissions has become a tool for the various governments to subside the public anger.
  7. Since Independence, more than a hundred Inquiry Commissions have been set up, but a very few have served the purpose. And the 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.
  8. 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 judgments which could be enforceable.
  9. The helplessness is such that even if an offence has been committed in view of or in presence of Commission, the Commission needs to forward the case to the Magistrate for trial as provided in Criminal Procedure code.
  10. 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.
  11. 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 former Prime Minister Indira Gandhi.
  12. 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 leveled charges were being inquired into, have died. Such are the frustrating results of these Commissions and Committees.
  13. Phukan Commission was set up to probe the Tehelka expose into fictitious defence deals. Everyone saw the tape on television and the then Government just to avoid immediate legal course, set up this Commission.
  14. And while there is no bias against the judiciary or the retired judges, who are a national repository of knowledge as far as judicial matters are concerned, the question needs to be examined is whether a Commission can substitute the country’s criminal investigation system.
  15. 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?
  16. It is important to note that India has a 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?
  17. The Criminal Procedure Code and for that matter entire Criminal Justice System is erected on this principle (Article 50 of Chapter IV on Directive Principles of State Policy) 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.

How to Improve Effectiveness of Judicial Probe:
  1. Effectiveness of judicial inquiries is scuttled by the non-binding nature of judicial inquiry commission report and reluctance of people to depose before the panels and follow up its proceedings properly. But  most of the  recommendations were implemented by the State governments.
  2. Judicial inquiries would become meaningful if its findings are made binding.
  3. A deadline should be fixed for filing the Action Taken Report on the judicial commission’s recommendations after it is placed before the State Assembly. Such a provision would compel the authorities to act on the recommendations of the commission. Moreover, suitable provisions should be incorporated in the terms of reference of the inquiry, making the commission’s report binding on those agencies concerned.
  4. When there is a public request for getting a clarification on a controversial issue, it’s the duty of the judiciary to cooperate with the executive in clearing the doubts. If the executive acts with good intentions in appointing the commissions, the judiciary should cooperate with it, with active involvement and timely submission of the report without any further delays, which happens in most of the Judicial Enquiry Commission.
  5. The governments will be forced to take note of the commission findings, failing which it may have to face agitations.
  6. Judicial inquiries were rarely ordered in the State. The cooperation of the government in providing support to the commission to function is also important.


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