Challenging the Notification

What survives of the ground. The words are still a limit, and a notification into a matter of no public importance at all, or into a matter so vague that it is not definite, would be bad. In practice the terms of reference are drawn to recite the public importance, and the recital is difficult to attack.

Ground three: mala fides

The argument. The inquiry has been ordered not to find facts but to damage political opponents.

The answer, from P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215, which chapter 390 works. The preamble to the notification showed that the object was to take legislative or administrative measures for maintaining high standards of public conduct and purity of political administration in the State in future, so the notification fell within section 3. It may be that the appointment was partly on account of political rivalry between the party in power and those against whom the inquiry was ordered, but the dominant purpose of setting up the Commission was to promote measures for maintaining purity and integrity of the administration in the political life of the State in future, and not the character assassination of rivals; therefore the notification was issued bona fide and is legally valid.

The dominant purpose test, stated plainly. The court does not ask whether politics played a part. It asks what the dominant purpose was. Since almost every Indian inquiry into a previous Government has some political element, a test that invalidated a notification whenever politics was present would invalidate nearly all of them.

And P.V. Jagannath Rao also disposed of a third argument: that appointing a Commission into matters that were the subject of a pending appeal was contempt of court. The Court held that to constitute contempt there must be an act or publication calculated to bring a court or a judge into contempt or to lower its authority, or calculated to obstruct or interfere with the due course of justice; the suits in that case were for damages for defamation in relation to allegations of corruption, and nothing of the kind was involved.

Ground four: the proviso to section 3(1)

The argument. A Commission is already inquiring into this matter, so a second one is barred.

The case that decides what "the same matter" means.

Facts. State of Karnataka v. Union of India, (1977) 4 SCC 608, AIR 1978 SC 68, decided on 8 November 1977 by a bench of seven, M.H. Beg CJ with Y.V. Chandrachud, P.N. Bhagwati, N.L. Untwalia, P.N. Shinghal, Jaswant Singh and P.S. Kailasam JJ. The Union Government appointed a Commission of Inquiry into allegations against the Chief Minister and other Ministers of Karnataka. The State had already notified its own Commission covering related ground. The State sued the Union under article 131, contending that the Central notification was barred by proviso (b) to section 3(1) and that the Union was interfering with the government of the State.

Held on the proviso. A perusal of the two notifications showed that the State notification was meant to set up a Commission to inquire whether the veil worn by certain transactions was correct in form and covered it fully, whereas the Central notification was clearly meant to enable its Commission to tear down the veil of apparent legality and regularity which some transactions may wear. It could not be said that the two notifications were covering "the same matter" within proviso (b). Since the two notifications authorised inquiries into matters substantially different in nature and object, the Central inquiry was not barred, even if, in order to deal with a substantially different subject matter, central areas of fact or rules governing the transactions were common; if the objectives are different, the examination of common areas of fact and law for different purposes is permissible.

Held on the purpose of the Act, which chapter 350 quoted. The obvious intention behind the 1952 Act is to enable the machinery of democratic government to function more efficiently and effectively, and it could hardly be construed as an Act meant to thwart democratic methods of government. In all democratic countries, when allegations and rumours circulate causing a crisis of confidence in the integrity of public life or about other matters of public importance, it is essential that public confidence be restored, and this can be done only by thoroughly investigating and probing the rumours and allegations; such an inquiry might reveal either that the evil exists or that there is no force in the rumours, and in either case confidence is restored. The Court also referred to the English Tribunal of Inquiry (Evidence) Act 1921 in the same passage, which chapter 370 read.

Why it matters. It is the case on the proviso, it is the case on the Union's power to inquire into a State's Ministers, and it contains the most quotable statement of the purpose of the Act. Its test, substantially different in nature and object, is the answer to any question about two overlapping inquiries.

The narrow room that is left

Put the four grounds together and the position is this. The Act is constitutional. Private conduct may be a matter of public importance. Political motive is not fatal if the dominant purpose is legitimate. Two related inquiries are not into the same matter if their objects differ. The Union may inquire into a State's Ministers.

What is left. A notification whose subject is not definite; one appointed by a Government that is not the appropriate Government under section 2(a), for instance a State inquiring into a Union List matter; one whose dominant purpose is shown to be improper on the material; one plainly into the same matter as a functioning Commission; and, since 2014, one made in the teeth of section 14(4) of the Lokpal Act.

And a fifth, which is the modern route. Not a challenge to the notification at all, but a challenge to the conduct of the inquiry, under sections 8B and 8C: that a person who should have been heard was not, or that cross-examination was refused. Chapters 440 and 490 supply that ground, and it is the one most likely to succeed.

A worked example

A State appoints a Commission into land allotments made by the previous Government. The former Chief Minister challenges the notification.

Article 14. Closed by Ram Krishna Dalmia: the discretion is guided by the Act's own policy.

Not a definite matter of public importance. He says the allotments were private transactions. Ram Krishna Dalmia again: the conduct of individuals may in certain circumstances be a definite matter of public importance, and the notification's preamble will recite it.

Mala fides. He says the inquiry is political. P.V. Jagannath Rao: the court asks the dominant purpose, and political rivalry may be part of the motive. If the preamble discloses an object of maintaining standards of public conduct in future, the notification stands.

The same matter. A Union Commission is already inquiring into a related contract. State of Karnataka v. Union of India: are the two inquiries substantially different in nature and object? If the State's is into the allotment procedure and the Union's into the contract's financing, they are not into the same matter even though facts overlap.

Where he may actually succeed. If, halfway through, the Commission proposes to find that his private secretary took money without ever hearing the secretary, section 8B has been breached and the report is vulnerable to that extent.

What beginners get wrong

That a politically motivated inquiry is invalid. The test is the dominant purpose.

That a private person cannot be inquired into. Ram Krishna Dalmia holds otherwise.

That any overlap between two inquiries triggers the proviso. The test is whether they are into the same matter, and the 1977 decision holds that substantially different objects make them different matters even where facts are common.

That the strongest challenge is to the notification. In practice it is to the conduct of the inquiry under sections 8B and 8C.

Quick revision

Four grounds, and their answers.

Article 14: closed by Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, the discretion being guided by the policy of the Act.

Not a definite matter of public importance: the conduct of an individual or company may in certain circumstances be one.

Mala fides: P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215, the dominant purpose test; political rivalry may be part of the motive; and appointing a Commission into matters also before a court is not contempt without more.

The same matter: State of Karnataka v. Union of India, (1977) 4 SCC 608, two notifications are not into the same matter where the inquiries are substantially different in nature and object, even if central areas of fact are common; one may inquire whether the veil is correct in form and the other may tear the veil down.

The route that works: a breach of sections 8B and 8C in the conduct of the inquiry.

Test yourself

1. On what grounds may a notification appointing a Commission be challenged, and how has each fared? Article 14, which failed in Ram Krishna Dalmia because the discretion is guided by the policy in the Act that an inquiry may be ordered only into a definite matter of public importance. That the subject is not a definite matter of public importance, which also failed there, the conduct of an individual or company being capable in certain circumstances of being such a matter. Mala fides, which failed in P.V. Jagannath Rao on the dominant purpose test. And the bar in the proviso to section 3(1), which failed in State of Karnataka v. Union of India because the two inquiries were substantially different in nature and object.

2. State the dominant purpose test and why it is framed that way. Where a notification is attacked as mala fide the court asks not whether political considerations played any part but what the dominant purpose of the appointment was. It is framed that way because almost every inquiry into a previous Government has some political element, so a test invalidating a notification whenever politics was present would invalidate nearly all of them; what matters is whether the dominant purpose was a legitimate one such as maintaining standards of public conduct for the future.

3. When are two Commissions into "the same matter"? When the inquiries are not substantially different in nature and object. In State of Karnataka v. Union of India the State's notification was meant to see whether the veil worn by certain transactions was correct in form and the Central one to tear that veil down, so they were not into the same matter; and the Court held that if the objectives differ, the examination of common areas of fact and law for different purposes is permissible.

4. Which challenge is most likely to succeed in practice, and why? A challenge to the conduct of the inquiry rather than to the notification: that a person whose conduct was inquired into or whose reputation was likely to be prejudicially affected was not heard as section 8B requires, or that the right of cross-examination or representation under section 8C was refused. The grounds for attacking the notification have all been narrowed by decisions, whereas the procedural rights conferred in 1971 are specific, statutory and capable of being shown to have been breached on the record.