Delay, Cost and the Practical Case Against the Present Act

Five: no duty to act. Section 3(4) requires the report and a memorandum of action taken to be laid within six months. It does not require any action, and it attaches no consequence to a failure to lay. Chapter 510 read it.

Six: appointment. The Act says nothing about who may be a member. Chapter 400 set out why the silence is deliberate and why it is nevertheless a criticism: the Government under inquiry chooses the person who will inquire.

Seven: resources. Nothing in the Act provides a Commission with staff, premises, investigators or a budget as of right. Section 5A lets it borrow officers with the concurrence of a Government; section 5B lets it appoint assessors whose expenses are prescribed by rules. Everything else depends on what the appointing Government provides.

Why delay is structural and not accidental

Four causes, and three of them are in the Act.

Extensions are free. No reasons, no limit, no laying.

The 1971 amendment lengthened inquiries. Chapter 440 said so plainly: sections 8B and 8C require every person whose reputation may be affected to be heard, and allow each of them to cross-examine every witness. That is a gain in fairness and a cost in time, and the Act gives the Commission no express power to regulate the length of cross-examination.

A Commission has no permanent staff. It builds an office, learns the subject and disperses, and every inquiry starts from nothing.

And the fourth cause is not in the Act. A Government under criticism has no reason to hurry, and every reason to let an inquiry run until the political moment has passed. Chapter 320 made the same observation about the appointment of the Lokpal, and it is the same phenomenon.

Cost, and why the Act is silent about it

There is no financial provision in the Act. No charge on the Consolidated Fund, no budget, no audit, no requirement to report expenditure.

Compare what this book has already read. Section 13 of the Lokpal Act charges the Lokpal's expenses on the Consolidated Fund of India and section 42 subjects its accounts to audit by the Comptroller and Auditor-General. Section 11 of the Maharashtra Act of 2023 charges the Lokayukta's expenses on the Consolidated Fund of the State. A Commission of Inquiry has neither.

The consequence runs both ways. A Commission cannot be starved of money by a vote, because there is no vote; it is simply given what the Government gives it. And there is no public record of what an inquiry cost, so the argument that inquiries are expensive is as unverifiable as the argument that they are cheap.

Which is itself a criticism worth making. An institution whose whole purpose is public accountability keeps no public account of itself.

The argument that Commissions are appointed to avoid action

The charge. An inquiry answers a public demand for action without taking any. It removes the subject from the daily political argument for years and, by the time it reports, the demand has gone.

Why the charge has force. Because everything in this chapter makes it easy to do. The Government chooses whether to appoint, whom to appoint, what to refer, what powers to give, how long to allow, whether to extend, whether to wind up, and what to do with the report.

Why the charge is not the whole truth, and a good answer says both. The same Act produced the inquiry worked in chapter 530 which examined 502 witnesses and named policemen and politicians. An instrument that can be misused is not thereby useless, and chapter 350 established a purpose against which the institution is often met.

The honest formulation. The Act gives the appointing Government almost complete control over an instrument designed to examine that Government. Where the Government is willing, the instrument works well; where it is not, the Act supplies no counterweight. That sentence is the case for reform, and chapter 550 sets out what the reforms are.

A worked example: the same inquiry under a Government that wants it and one that does not

Facts: a large public hospital's oxygen supply fails and patients die.

Under a Government that wants the truth. It appoints a Commission within a week, refers the whole subject including the procurement rules, applies all of section 5 by notification so the Commission may search and seize, gives it a serving Additional Secretary as Secretary and officers under section 5A, allows six months, extends once for two months on the Commission's request, receives the report, lays it with a memorandum accepting the findings, and amends the rules.

Under a Government that does not. It appoints a Commission after four months of pressure, refers only the events of the night and not the procurement, does not notify section 5 so the Commission cannot search, gives it two clerks, allows six months, extends it seven times over four years, and, when the Commission begins to examine the Health Secretary, notifies under section 7 that it shall cease to exist because its continued existence is unnecessary. There is no report. Section 3(4) requires the report if any to be laid. Nothing is laid.

Same Act. Same section numbers. Entirely different institution. That is the case against the present Act stated as an example, and it is the most effective way to make it in an answer.

What beginners get wrong

That the delay is the Commissions' fault. The Act permits unlimited extensions and provides no discipline.

That the Act limits cost. It says nothing about money at all.

That a Government must act on a report. It must lay the report and a memorandum of action taken; it need not act.

That every Commission has the same powers. Section 5's powers depend on a notification.

Quick revision

Seven gaps: time, unlimited extensions under s.3(1); winding up, s.7(1)(a) on an opinion that continued existence is unnecessary, without reasons; publicity, s.8 leaves public or private to the Commission; coercive powers, s.5 depends on a notification; no duty to act, s.3(4) requires only laying; appointment, the Act is silent on who may be a member; resources, no budget, no charge on the Consolidated Fund, no audit.

Delay is structural: free extensions; the 1971 procedural rights with no power to regulate their length; no permanent staff; and no incentive on a Government under criticism to hurry.

The charge: an inquiry answers a demand for action without taking any. The answer: the same Act produced inquiries that worked, so the fault is that the Act supplies no counterweight where the Government is unwilling.

Test yourself

1. List the gaps in the Act and identify the section each is traced to. Time, section 3(1), which requires a time to be specified but permits unlimited extensions without reasons or laying. Winding up, section 7(1)(a), which allows the appointing Government to end a Commission on its opinion that continued existence is unnecessary. Publicity, section 8, which leaves the choice between public and private sittings to the Commission. Coercive powers, section 5, which applies only if the Government notifies. No duty to act, section 3(4), which requires only the report and a memorandum to be laid. Appointment, on which the Act is silent. And resources, for which there is no provision at all.

2. Why is delay structural rather than accidental? Because three of its four causes are in the Act. Extensions require no reasons, are unlimited in number and need not be laid. The rights conferred by sections 8B and 8C in 1971 require every person whose reputation may be affected to be heard and permit each to cross-examine every witness, with no express power in the Commission to regulate the length of cross-examination. And a Commission has no permanent staff, so every inquiry builds an office from nothing. The fourth cause is political: a Government under criticism has no reason to hurry.

3. Compare the financial provision for a Commission with that for the Lokpal. There is none for a Commission: the Act contains no charge on the Consolidated Fund, no budget, no audit and no requirement to report expenditure, so a Commission receives whatever the appointing Government provides. Section 13 of the Lokpal Act charges the Lokpal's administrative expenses on the Consolidated Fund of India, so they are not submitted to the vote, and section 42 subjects its accounts to audit by the Comptroller and Auditor-General with the full powers he has over Government accounts.

4. "Commissions of Inquiry are appointed to avoid action." Assess. The charge has force because the Act gives the appointing Government control over every variable: whether to appoint, whom to appoint, what to refer, which powers to confer under section 5, how long to allow, whether to extend, whether to wind up under section 7, and what to do with the report under section 3(4). It is not the whole truth, because the same Act has produced inquiries that examined hundreds of witnesses and named those responsible. The honest formulation is that the Act gives almost complete control over the instrument to the body the instrument exists to examine, so that it works well where the Government is willing and supplies no counterweight where it is not.