Inquiry BY a Judge: the Judicial Commission of Inquiry

In one line

The Commissions of Inquiry Act says nothing about who a Commission is, and the practice of putting a judge at its head is convention, not law, but that convention is the whole of the institution's credit.

In the wording a student can write in an exam: section 3(2) of the Commissions of Inquiry Act 1952 provides only that the Commission may consist of one or more members appointed by the appropriate Government and that where it consists of more than one member one of them may be appointed as Chairman, and the Act prescribes no qualification whatever; the practice of appointing a serving or retired Judge of the Supreme Court or of a High Court rests on convention, and in State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, AIR 1967 SC 122, the fact that the Commissioner appointed was a retired Judge of the Supreme Court was treated by the Court as an indication that the appointment had not been prompted by malice.

The two senses, joined

Chapter 1560 set out the two things "judicial inquiry" can mean, and MU's question asks for both.

Sense one, an inquiry INTO a judge, worked in chapters 1550 to 1720.

Sense two, an inquiry BY a judge, which is the Commission of Inquiry of chapters 350 to 550 with a judge at its head.

They have almost nothing in common except the word, and an answer must not run them together. The first is about removing a judge; the second is about using one.

What the Act says about who a Commission is: nothing

Section 3(1) empowers the appropriate Government, if it is of opinion that it is necessary so to do, and obliges it if a resolution in that behalf is passed by each House of Parliament or the Legislature of the State, to appoint by notification a Commission "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."

Section 3(2) is the whole of the law on composition:

"The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof."

That is all. Chapter 400 made the point and it bears repeating here: no qualification, no disqualification, no number, no tenure, no removal. Compare section 3(2) of the Judges (Inquiry) Act, chapter 1580, which prescribes exactly three members and exactly who they must be. The contrast is the chapter.

So a judge on a Commission of Inquiry is there because the Government chose him, and for no other reason. There is no such thing in law as a "judicial commission of inquiry"; there is a Commission of Inquiry whose member happens to hold or to have held judicial office.