The commissions of enquiry act 1952

The commissions of enquiry act 1952; though not a court of law, yet the commission exercises an adjudicatory function akin to that of the courts

1. Commissions of
Inquiry Act
Administrative Law II
PALLAVI DEVI, PHD
PG DEPARTMENT OF LAW, GAUHATI UNIVERSITY

2. Object and Scope of Commission
of Inquiry Act, 1952
u History behind the formation of a Commission of Inquiry
u Though not a court of law, yet the commission exercises an adjudicatory
function akin to that of the courts
u The expanding role of the modern welfare state needs a good system of
governance
u The government requires full and first hand information
u For this reason, they set up inquiries that probe into specific mattes that
concern the public and the government itself.

3. Need of an Enquiry Commission:
u In pursuit of public good has meant that affairs of the individual citizen are
increasingly affected by the decisions of government departments.
u Many administrative and quasi judicial functions exercised by the administration
often require making of some preliminary enquiry before exercising that power.
u Efficient decision making involves,
u An enquiry to ascertain the facts of a situation
u Reasonable thought and judgment
u The actual decision

4. Background:
u The Donoughmore Committee:
u This Committee was appointed ‘to consider the powers exercised by or under the
direction of, Ministers of the crown by way of judicial or quasi-judicial decision and to
report what safeguards are desirable or necessary to secure the constitutional
principles of the sovereignty of Parliament and the supremacy of the Law.
u The Frank Committee:
u The Frank Committee was appointed by the British lord Chancellor to study
administrative tribunals and such procedures as the holding of a public inquiry. The
committee declared that the work of administrative tribunals and of public inquiries
should be characterized by openness, fairness and impartiality and their report applied
these aims in great detail. The recommendations of the committee were largely
accepted and resulted in the Tribunals and Enquiries Act of 1958.

5. The Donoughmore and the Frank
Committee
u These two committees were landmark ones in the same field.
u Not only checked the trampling of Human Rights, the perversion of justice and the
denial of redress against the immense powers of the state and other such matters,
they also looked into the growth of the tribunal system and whether it was doing well
for the nations.
u The Frank Committee considered that tribunals should be regarded as machinery
provided by Parliament for adjudication] rather than as part of the machinery of
administration. The fundamental point is that Parliament has deliberately provided for
a decision independent of the department concerned. And the intention of
Parliament to provide for the independence of tribunals is clear and unmistakable.

6. Hierarchy of courts in India after 1950
Supreme Court of India
State High Courts
District Courts
Tribunals

7. The importance and need of setting up of commissions of enquiry:
u ” On the one hand there are ministers and other administrative authorities enjoined
by legislation to carry out certain duties. On the other hand there are the rights and
feelings of individual citizens who find their possessions or plans interfered with by
the administration. There is also the public interest which requires both that ministers
should not be frustrated in carrying out their duties and also that their decisions
should be subject to run of ceffective checks or control, and these can no longer
be applied by Parliament in the general cases.” [The Frank Committee]
u The whole object of these enquiries is to assuage the feelings of the citizen and to
give his objections the fairest possible consideration. [Wade]

8. Contd…
u The Committee gave a few recommendations on tribunals;
u Tribunals were to be remade in the image of the ordinary courts
u Chairmen must be legally qualified
u Following of proper procedure is must
u Hearing should be public
u Right to legal representation and legal aid must be given
u In brief, the Committee through its recommendations, to curb maladministration, by the
application of procedural values of openness, fairness and impartiality, the committee
aimed to guide tribunals to an ‘ideal’ type of adjudication.

9. The Appointment of Commission of Inquiry Act
u The Commissions of Inquiry Act provides for the appointment of commissions of
inquiry and for vesting them with certain powers.
u Appropriate Commissions are formed when the Government deems it necessary,
and if each house of the parliament passes the resolution for the same.
u In India such a commission can be appointed under the Commissions of Inquiry Act,
1952, the Industrial (Development and Regulation) Act 1951, the Tariff Commission
Act and the Income Tax Investigation Commission Act.

10. Constitution of Commissions
u Prior to the enactment of Commissions of Inquiry Act, 1952 the governments used to
set up committee and commissions by an executive order.
u The Act has been used to investigate different kinds of matters.
u The first enquiry commission in India: The Chagla Commission
u [whether funds of the Life Insurance Corporation of India had been properly utilized]
u This Act provides that if the government of India or the government of a state is of the
opinion that it is necessary to appoint a commission of enquiry, it may, by a notification in
the official gazette, announce setting up a commission for the purpose of making an
enquiry into any definite matter of public importance within a prescribed period.
u The government can also set up a commission of enquiry on its own initiative and without
any demand from any quarter if it considers it necessary and in the interest of the people.

11. Example of commissions
u The Chagla Commission to enquire into the affairs of Dalmia
u The Vivian Bose Commission for the matters relating to Allenberry Co.
u The Ayyangar Commission to inquire into the conduct of Bakshi Ghulam
Mohammad, the ex-prime-minister of J & K
u The Government of Orissa appointed a commission headed by Justice H. A Khanna
of Delhi High Court to inquire into the conduct of Hare Krushna Mahtab on its own
initiative and without any request from the legislative assembly.

12. Scope: Appointment of Commission [sec 3]
u It is 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 [sec 3]
u Provided where any such Commission has been appointed to inquire into
any matter
a) by the central government, no state government shall,
except with the approval of the Central Government appoint another
commission to inquire into the same for so long as the commission
appointed by the central government is functioning
u B)By a state government, the central government shall not 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.

13. Scope of the Enquiry Commission
u Merely to investigate and record its findings and recommendations, without
having any power to enforce them
u The enquiry cannot be looked upon as judicial enquiry
u The statements made by any person before the commission are wholly
inadmissible in evidence in any further proceeding, civil or criminal
u Its report is purely recommendatory and not effective proprio vigore
u 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 are to be adopted to eradicate the evil
found out or to implement the beneficial objectives it has in view.

14. Whether inquiry instituted by the Government related to the
same matter which was the subject of a civil suit pending
before the High Court, amounted to the usurpation of the
functions of courts of law?




u P.V Jagannath Rao v. State of Orissa
u Sambhu Nath Jha v. Kedar Prasad Sinha

15. Matters of Public Importance
u Necessarily Past Acts/intrinsic nature
u  They have already affected the public well being or their effect might do so, that
they become matters of public importance.
u It is irrelevant whether the person who committed those acts is still in power to be
able to do it again
u Resignation from an office could not change the character of the acts of a person
who held a public office
u The Supreme court held the view that it was of public importance that public men
failing in their duty should be called upon to face the consequences
u [Biju Patnaik case and Krishna Bailabh Sahai case]

16. The Enquiry v. Civil Litigation
u Read the Kairon Inquiry Report
u In Civil Action, there is a plaintiff and a defendant and a lis or an issue
between them which the plaintiff may choose to abandon
u In Criminal case, there is the prosecutor and an accussed and a charge
which the prosecutor may withdraw, with or without the permission of the
court as prescribed in the CPC
u In an Inquiry under the Commission however there is no plaintiff or
prosecutor, there is no defendant or accused and there is no lis or charge
to be adjudicated. Therefore, in short, the commission is not expected and
indeed, is not competent to finally adjudicate upon any issue or charge or
pronounce any judgment or order which is binding and enforceable.

17. Object: Powers of the Commission
u The powers of the Commission are on the same level and of similar as the powers of a
civil court when the case concerned is tried under the CPC, 1908. The matters are as
follows,
u a) summoning and enforcing the attendance of any person from any person
from any part of India and examining him on oath
u B) Requiring the discovery and production of any document
u C)Receiving evidence on affidavits
u D)Requisitioning any public record or copy thereof from any court or office
u E)Issuing commissions for the examination of witnesses or documents
u Any other matter which may be prescribed.

18. Importance of the commission
u The machinery of the government to inquire into a definite matter of public
importance
u To collect such relevant material as it may and make a report to the government,
along with its own views and recommendations
u To inform the mind of the government and to enable it to take such actions as it
may in the circumstances think fit.
u The third point is very important

19. Two imp questions
u One, regarding the institution of parallel proceedings in respect of
same matters before the Commission of Inquiry and the Court of
Law.
u Two, regarding the powers of commission to punish for its contempt.

20. The power of the Commission of
Inquiry
u A Commission has all powers of a civil court in so far the summons to the
witnesses, production of documents and receiving evidence are concerned.
u The government can vest other powers in the Commission by a notification.
u The Commission is not bound to follow the strict principles of evidence in its
proceedings [but must see that the principles of natural justice are not violated].

u Lord Hewart’s maxim: Justice should both be done and manifestly seen to be
done. The Commission

21. Procedure to be adopted by the Commission of Enquiry
o The Central Government and the State Governments have been empowered to
frame rules for the procedure to be adopted by the commissions of enquiry.
o Sec 8 of the Commission of Enquiry Act: to regulate its own procedure and to
decide whether it will hold its proceedings in private or in public.

22. Legal Status:
u The Commission has no power of adjudication in the sense of passing an order which can
be enforced ‘proprio vigore’
u The Commission can merely investigate and record its findings and recommendations
without having any power to enforce them
u Therefore the enquiry or the report cannot be looked upon as a judicial inquiry in the
sense of its being an exercise of judicial function properly so called.
u The members of a commission cannot claim immunities which are available to an officer
presiding over a court of law. They are not immune from the contempt of any court of
law.

u A member of judiciary retains his status of presiding officer of a court of law while acting in
his judicial capacity even if he is casually performing the duties of a member of a
commission of enquiry.
u The Commissions are temporary and not whole time posts.
u A judge appointed to head a Commission of enquiry is not deprived of his status as a
judge of the High Court.