Public Inquiries and the Commissions of Inquiry Act 1952

1. "Any definite matter of public importance." The matter must be definite, so a roving inquiry into a subject at large is outside the section, and it must be of public importance, so a private dispute is not.

2. The Government's opinion, or a resolution of the House. Appointment is ordinarily discretionary; it becomes mandatory where the House of the People or a State Legislative Assembly passes a resolution.

3. By notification in the Official Gazette, specifying the functions and the time.

Section 7 provides that the Commission ceases to exist when the Government so notifies.

Powers: sections 4, 5, 5A and 5B

Section 4 gives the Commission the powers of a civil court while trying a suit under the Code of Civil Procedure 1908, in respect of: summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavit; requisitioning any public record from any court or office; issuing commissions for the examination of witnesses or documents; and such other matters as may be prescribed.

Section 5 confers additional powers where the appropriate Government so declares by notification: to require a person to furnish information, to enter any building or place where the Commission has reason to believe books or documents relating to the subject matter may be found, and to seize or take extracts from them. These are not automatic; the Government must notify that section 5 applies.

Section 5A allows the Commission to use the services of officers or investigating agencies of the Central or State Government for investigation, and section 5B allows it to appoint assessors, that is persons with special knowledge to assist it.

Section 6 protects the maker of a statement to the Commission: no statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding, except a prosecution for giving false evidence, provided the statement was made in answer to a question the Commission required him to answer.

Section 6A protects a person from being obliged to disclose a secret process of manufacture.

Procedure and the rights of persons affected

Section 8 provides that the Commission shall, subject to any rules, have power to regulate its own procedure, including fixing the places and times of its sittings and deciding whether to sit in public or in private, and may act notwithstanding a vacancy. Section 8A provides that an inquiry is not interrupted by a vacancy or change in the membership.

Sections 8B and 8C are the natural justice provisions of the Act, and they are the most examinable part of it.

Section 8B: if at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person, or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give that person a reasonable opportunity of being heard and to produce evidence in his defence. There is a proviso for cases where the credit of a witness is being impeached.

Section 8C: the appropriate Government, every person referred to in section 8B and, with the permission of the Commission, any other person whose evidence is recorded, shall have the right of cross-examination, of addressing the Commission, and of being represented before it by a legal practitioner.

Those two sections are the answer to the objection that a commission of inquiry can destroy a reputation without the safeguards of a trial. They import notice, hearing, cross-examination and representation, which is a good deal more than most administrative inquiries provide: compare [Audi Alteram Partem].

Protection and offences

Section 9 protects the Commission and its officers from suit or legal proceeding for anything done in good faith, which is the statutory immunity discussed in [Act of State and Statutory Immunity].

Section 10 makes the members and staff public servants.

Section 10A penalises acts calculated to bring the Commission or a member into disrepute, which is a substitute for the contempt power a court has inherently: compare [Tribunal and Court Distinguished].

Section 11 applies the Act's provisions to other inquiring authorities in certain cases, where the Government so directs.

Section 12 confers the rule making power, which is delegated legislation of the framing type: [Forms and Types of Delegated Legislation].

What a Commission of Inquiry is not

This is where most marks are won, and the propositions should be stated plainly.

1. It is not a court. It does not decide a lis between parties, and it is not part of the judicial hierarchy.
2. Its report is not a judgment. It binds nobody, determines no rights and creates no liability.
3. It cannot punish. It reports; any consequence must follow from separate action, a prosecution, a departmental proceeding or a policy change.
4. The Government need not accept it. The report goes to the Government, which decides what to do with it, and whether it is published at all is in practice a political question.
5. Its findings are not binding on a later court. A criminal court trying the same facts must decide on the evidence before it.

So the commission's real function is finding facts and fixing responsibility for the public record, which is a form of accountability by publicity rather than by sanction: [Public Accountability].

The advantages and the criticisms

Advantages. It can inquire into a matter no court could, because there is no lis and no accused; it can be staffed by a person of standing, often a retired judge; it can take a wide view of causes and recommend systemic change; and its proceedings, being public, satisfy the public demand to know.

Criticisms. It is often appointed to defuse public anger rather than to produce action; the report may be delayed for years; the report may not be published; there is no obligation to act on it; and the reputation of a person may be damaged by a body whose findings he cannot appeal, though sections 8B and 8C mitigate this.

A worked example

A pedestrian overbridge in a city collapses, killing eleven people. There is public anger about the tender, the design and the maintenance.

1. Appointment. The State Government notifies a Commission under section 3 to inquire into the causes of the collapse and to fix responsibility. The collapse is a definite matter of public importance, so the section is satisfied. If the Legislative Assembly passes a resolution requiring an inquiry, appointment is mandatory.
2. Powers. Under section 4 the Commission summons the municipal engineers, requires production of the tender file and the inspection registers, and receives evidence on affidavit. If the Government notifies section 5, it may enter the corporation's offices and seize records.
3. Assistance. It uses an investigating agency under section 5A and appoints a structural engineer as an assessor under section 5B.
4. Rights of the officers. When it becomes clear that the conduct of the Executive Engineer is in question, section 8B requires that he be given a reasonable opportunity of being heard and to produce evidence in his defence, and section 8C gives him the right to cross-examine, to address the Commission and to be represented by a lawyer.
5. Protection for witnesses. A clerk who admits, in answer to a question he was required to answer, that he signed a false inspection entry is protected by section 6 from that statement being used against him in a civil or criminal proceeding, except a prosecution for giving false evidence.
6. The report. It finds that the design was inadequate and that inspections were not carried out. That finding binds nobody. Whether the engineers are prosecuted depends on a police investigation and evidence; whether they are dismissed depends on a departmental inquiry with its own natural justice requirements; whether the tender rules are changed depends on the Government.

What it does NOT mean

It does not mean the commission can punish. It reports.

It does not mean the person inquired into has no rights. Sections 8B and 8C give him notice, a hearing, cross-examination and representation.

It does not mean the Government must publish or act on the report. It need not, which is the central criticism.

It does not mean the findings bind a criminal court. They do not.

Quick revision

1. Commissions of Inquiry Act 1952, twelve sections with lettered insertions.
2. Section 3: the appropriate Government may appoint a Commission if it is of opinion that it is necessary, and shall do so if the House of the People or a State Legislative Assembly passes a resolution, by notification, to inquire into any definite matter of public importance. Section 7: it ceases to exist when so notified.
3. Section 4: the powers of a civil court for summoning witnesses, requiring documents, receiving affidavits, requisitioning public records and issuing commissions. Section 5: additional powers of requiring information, entry, search and seizure, only where notified. Section 5A: use of investigating agencies. Section 5B: assessors.
4. Section 6: a statement made in answer to a question the Commission required to be answered cannot be used against the maker except in a prosecution for false evidence. Section 6A: no obligation to disclose a secret process of manufacture.
5. Section 8: the Commission regulates its own procedure. Section 8A: no interruption by a vacancy.
6. Section 8B: a person whose conduct is inquired into or whose reputation is likely to be prejudicially affected must be given a reasonable opportunity of being heard and to produce evidence. Section 8C: rights of cross-examination, of addressing the Commission and of representation by a legal practitioner.
7. Sections 9 to 12: good faith protection, public servant status, penalty for bringing the Commission into disrepute, application to other inquiring authorities, and rule making.
8. The report is not a judgment: it binds nobody, punishes nobody, need not be accepted or published, and does not bind a later court.

Test yourself

1. Who may appoint a Commission of Inquiry, and into what? Under section 3 of the Commissions of Inquiry Act 1952 the appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution to that effect is passed by the House of the People or the Legislative Assembly of the State, appoint by notification in the Official Gazette a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance, performing such functions and within such time as the notification specifies. The matter must be definite, so a roving inquiry into a subject at large is not authorised, and it must be of public importance, so a purely private dispute is outside the section. The Commission ceases to exist when the Government so notifies under section 7.

2. What powers does a Commission of Inquiry have? Under section 4 it has the powers of a civil court trying a suit under the Code of Civil Procedure 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents, receiving evidence on affidavit, requisitioning any public record from any court or office, issuing commissions for the examination of witnesses or documents, and such other matters as may be prescribed. Under section 5, where the appropriate Government so declares by notification, it has the additional powers of requiring a person to furnish information, entering any building or place where it has reason to believe relevant books or documents may be found, and seizing them or taking extracts. Section 5A allows it to use the services of government officers or investigating agencies, and section 5B to appoint assessors.

3. What protection does the Act give to a person whose conduct is inquired into? Section 8B provides that if the Commission considers it necessary to inquire into the conduct of any person, or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give that person a reasonable opportunity of being heard and of producing evidence in his defence. Section 8C gives the appropriate Government, every person referred to in section 8B and, with the Commission's permission, any other person whose evidence is recorded, the right to cross-examine, to address the Commission and to be represented by a legal practitioner. Section 6 further protects a witness by providing that a statement made in the course of giving evidence, in answer to a question the Commission required him to answer, shall not subject him to or be used against him in any civil or criminal proceeding, except a prosecution for giving false evidence.

4. What is the legal effect of the report of a Commission of Inquiry? None, in the strict sense. It is not a judgment: it determines no rights, creates no liability, binds nobody and cannot be enforced. The Commission cannot punish; any consequence must follow from separate proceedings, whether a prosecution, a departmental inquiry with its own requirements of natural justice, or a change of policy. The report goes to the Government, which is under no obligation to accept it, and its publication is in practice a matter for the Government. Its findings do not bind a criminal court trying the same facts, which must decide on the evidence before it. Its value lies in establishing the facts and fixing responsibility publicly, which is accountability by publicity rather than by sanction.

5. State the criticisms of the commission of inquiry as an instrument of accountability. That it is often appointed to defuse public anger rather than to produce action, so that the appointment itself becomes the response; that reports are frequently delayed for years, by which time the matter has lost public attention; that the report need not be published and often is not; that there is no obligation on the Government to act on it, so that even a well founded finding may lead nowhere; and that a person's reputation may be damaged by findings against which there is no appeal, though sections 8B and 8C mitigate this by requiring a hearing and allowing cross-examination and legal representation.