How Much Natural Justice Is Owed Before a Commission

Held on the constitutional objections. Section 37 of the Jammu and Kashmir Constitution, dealing with the collective responsibility of Ministers to the Legislative Assembly, means only that the Council of Ministers stands or falls together before the House and is no bar to an inquiry into the conduct of an individual Minister. The doctrine of Cabinet responsibility does not mean that an inquiry against one member of the Cabinet is discrimination under article 14: the respondent was in a class by himself and the classification was justified. On the facts the inquiry could not be said to be mala fide.

Held on natural justice, which is the holding for this chapter. The rule of natural justice only requires that a hearing should be given. When the Commission refused permission to the respondent to cross-examine all the witnesses who had filed affidavits against him, no rule of natural justice was violated. Section 10 of that Act gave a right to cross-examine only those persons who gave viva voce evidence before the Commissioner, and section 4(c) did not confer a right on a party appearing before the Commission to require a witness giving evidence by affidavit to be produced for cross-examination, though the Commission would of course permit cross-examination in a case where it thought it necessary.

Why it matters. It is the clearest statement of how little natural justice required of an Indian Commission before the amendment of 1971, and it is therefore the measure of how much sections 8B and 8C changed. Viva voce means by word of mouth, that is oral evidence given in person.

And a caution a student should record. The case was decided under the Jammu and Kashmir Commission of Inquiry Act 1962, a separate State statute, because the central Act did not then extend to that State. Chapter 380 noted that the central Act now extends to the whole of India. The reasoning about natural justice is general; the sections construed are that State Act's.

What changed in 1971, and what did not

What changed. Sections 8B and 8C, which chapter 440 read in full, converted a bare right to be heard into a right to be heard, to produce evidence in defence, to cross-examine witnesses other than one's own, to address the Commission and to be represented by a legal practitioner. The trigger is wide: not only the person whose conduct is inquired into, but anyone whose reputation is likely to be prejudicially affected.

What did not change. Three things, and they are what a careful answer adds.

A Commission is still not bound by the Evidence Act. Section 8 lets it regulate its own procedure, and section 5(2), where notified, speaks of information useful for or relevant to the subject matter.

It may still receive evidence on affidavit, under section 4(c). What has changed is that a person within section 8B may now cross-examine the deponent, because section 8C(a) is not limited to witnesses who give oral evidence in the way the Jammu and Kashmir provision was.

And the report is still not a decision, so the content of fairness is calibrated to what the body does. A Commission need not give reasons in the way a court must, need not follow a fixed order of proceedings, and may take material a court could not.

The rule stated as a student should carry it

The duty to act fairly applies. Its content is fixed principally by sections 8B and 8C and beyond them by what fairness requires in the circumstances of the particular inquiry.

The core is: tell the person, show him the material, let him answer, let him test the evidence against him, and let him have a lawyer.

The limits are: no obligation to follow the Evidence Act, no obligation to hear a person whose credit is being impeached as a witness, and no obligation to conduct the inquiry as a trial.

A worked example

A Commission inquires into a public housing scheme. Affidavits are filed by twenty allottees alleging that a named officer demanded money.

Before 1971, on the reasoning of State of Jammu and Kashmir v. Bakshi Ghulam Mohammad: the officer must be heard. He has no right to require any deponent to be produced for cross-examination, and the Commission may allow it where it thinks necessary.

Since 1971. Section 8B: his conduct is being inquired into, and in any event his reputation is likely to be prejudicially affected, so he must be given a reasonable opportunity of being heard and to produce evidence in his defence. Section 8C(a): he may cross-examine the deponents, because they are not witnesses he produced. Section 8C(c): he may be represented by a legal practitioner.

A clerk who is not accused but whose signatures appear on the files is also likely to be prejudicially affected. Section 8B limb (b) brings him in.

One deponent is shown to have been convicted of cheating. Counsel for the officer attacks his credit. The deponent asks for a section 8B hearing of his own. The proviso answers him: the section does not apply where the credit of a witness is being impeached.

The Commission decides to sit in private for two sittings because a witness fears for his safety. Section 8 permits it, and chapter 430 discussed the discretion.

And the officer is not shown a note prepared by the Commission's assessor. Chapter 400 raised this: the safe course, and what fairness requires, is that the substance of any material the Commission proposes to act on against him be put to him, whatever its source.

What beginners get wrong

That natural justice does not apply because nothing is decided. It applies because reputation is affected in fact, and since 1971 the statute says so.

That Bakshi Ghulam Mohammad states the current law on cross-examination. It states the law before the 1971 amendment, and under a State Act whose provisions differed.

That a person may insist that every deponent be produced. Section 8C(a) gives a right to cross-examine, and the Commission retains control of its procedure under section 8; what it may not do is refuse the right altogether to a person within section 8B.

That a Commission must follow the Evidence Act. It need not.

Quick revision

Why natural justice applies: a report creates no liability but destroys reputations in fact, and since 1971 sections 8B and 8C put the matter beyond argument.

Before 1971, State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, AIR 1967 SC 122: the rule of natural justice only requires that a hearing should be given; refusing cross-examination of all affidavit deponents violated no rule of natural justice; the right to cross-examine under that State Act extended only to those who gave viva voce evidence.

Also held there: collective responsibility is no bar to an inquiry into one Minister; a former Prime Minister is a class by himself, so no article 14 objection; the inquiry was not mala fide.

Since 1971: hearing, evidence in defence, cross-examination of witnesses other than one's own, addressing the Commission, and legal representation.

Unchanged: not bound by the Evidence Act; affidavit evidence still receivable under section 4(c); the report is still not a decision, so fairness is calibrated to the function.

Test yourself

1. Why do the rules of natural justice apply to a body that decides nothing? Because a Commission's findings, though creating no legal liability, are capable of destroying a reputation and a career in fact, and Indian administrative law imposes a duty to act fairly on a body whose findings can have that effect. Since 1971 the question does not have to be argued from principle, because sections 8B and 8C of the Act state what must be done.

2. What did State of Jammu and Kashmir v. Bakshi Ghulam Mohammad decide on natural justice? That the rule of natural justice only requires that a hearing be given, and that when the Commission refused the former Prime Minister permission to cross-examine all the witnesses who had filed affidavits against him no rule of natural justice was violated. Under the Jammu and Kashmir Commission of Inquiry Act 1962 the right to cross-examine extended only to persons who gave viva voce evidence, and there was no right to require a deponent on affidavit to be produced, though the Commission could permit it where it thought that necessary.

3. How much did the 1971 amendment change? A great deal. Section 8B gives a person whose conduct is inquired into, and any person whose reputation is likely to be prejudicially affected, a reasonable opportunity of being heard and to produce evidence in his defence. Section 8C gives him, and the appropriate Government, and with permission any other person whose evidence is recorded, the right to cross-examine a witness other than one he produced, to address the Commission and to be represented by a legal practitioner. So the bare hearing of 1966 became a full set of procedural rights.

4. Name three things the 1971 amendment did not change. The Commission is still not bound by the Indian Evidence Act and may regulate its own procedure under section 8. It may still receive evidence on affidavit under section 4(c), though a person within section 8B may now cross-examine the deponent. And its report remains a report and not a decision, so the content of fairness is calibrated to what the body does: it need not give reasons as a court must, need not follow a fixed order of proceedings, and may act on material a court could not receive.