Offences Before a Commission, and the Rule-Making Power

Section 10A: bringing the Commission into disrepute

Section 10A(1). If any person, by words either spoken or intended to be read, makes or publishes any statement, or does any other act, which is calculated to bring the Commission or any member thereof into disrepute, he shall be punishable with simple imprisonment up to six months, or with fine, or with both.

Section 10A(2). Notwithstanding the Code of Criminal Procedure 1973, when such an offence is alleged, the High Court may take cognizance of it, without the case being committed to it, upon a complaint in writing made by a member of the Commission or an officer of the Commission authorised in that behalf.

Section 10A(3). Every such complaint shall set forth the facts constituting the offence, its nature and such other particulars as the sub-section requires.

Three features to notice.

"Calculated to" means likely to have that effect, judged objectively. It does not require proof that the person intended it.

The High Court tries it directly. No committal, no magistrate. That is the same treatment contempt of court receives, and it tells you what the provision is: a contempt power for a body that is not a court, since the Contempt of Courts Act does not apply to a Commission, as Brajnandan Sinha held and chapter 470 works.

Only the Commission may complain. A member, or an officer authorised by it. Nobody else can set the section in motion, which prevents it being used by a Government or by a private party against a critic.

The free speech question, which an examiner may raise. An offence of bringing a body into disrepute sits uneasily with article 19(1)(a). Two things temper it: the requirement that only the Commission may complain, and the requirement that the words be calculated to bring the Commission into disrepute rather than merely to criticise its conclusions. Fair criticism of a report is not the mischief; an attempt to destroy the standing of the inquiry while it is running is.

Compare section 15 of the Maharashtra Lokayukta Act 1971, which chapter 260 read, and section 50 of the Act of 2023: the same offence, the same six months, for the same reason.

Section 12: rules

Section 12(1). The appropriate Government may, by notification in the Official Gazette, make rules to carry out the purposes of the Act.

Section 12(2) lists the particular matters, and each tells you something about what the Act leaves open:

1. (a) the term of office and conditions of service of the members. Chapter 400 noted that the Act itself says nothing about composition; this is where it is dealt with.
2. (b) the manner in which inquiries may be held and the procedure before the Commission. Section 8 gives the Commission power to regulate its own procedure subject to any rules, and this is the power that makes those rules.
3. (c) the powers of a civil court which may be vested in the Commission, which is section 4(f)'s "any other matter which may be prescribed".
4. (cc) the travelling and other expenses payable to assessors appointed under section 5B and to persons summoned to give evidence or produce documents. Inserted when assessors were added in 1971.
5. (d) any other matter which has to be or may be prescribed.

Section 12(3). Every rule made by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions; and if both Houses agree in making a modification or agree that the rule should not be made, it shall have effect only in the modified form or be of no effect, without prejudice to the validity of anything previously done under it.

Why section 12(3) belongs to two labels at once

This is the laying procedure, and chapter 1230 sets out its three forms in full under MU's sixth label, Legislative Control. Its appearance here is not a coincidence.

Notice how it got here. Section 12(3) was inserted by the Delegated Legislation Provisions (Amendment) Act 1985, one of a series of statutes by which Parliament went through the statute book adding laying requirements to rule-making powers that lacked them. The Committee on Subordinate Legislation, which chapter 1050 reads, is the parliamentary body whose recommendations produced those Acts.

So the sequence is: a legislative committee inquires; its recommendations produce a statute; that statute inserts a control over delegated legislation into an Act about Commissions of Inquiry. Labels 2, 5 and 6 of this syllabus in one footnote.

And notice the limit. Section 12(3) applies to rules made by the Central Government only. A State Government's rules under section 12(1) are laid, if at all, under the State's own general law. Chapter 1240 asks whether laying is mandatory or directory, and the answer there depends on precisely this kind of wording.

A worked example

A Commission is inquiring into a bank failure. A television channel broadcasts, night after night, that the Commission's chairman was appointed because he is related to a Minister, that the inquiry is a farce and that its report is already written.

Is that an offence under section 10A? The words are intended to be read or heard, they are published, and the question is whether they are calculated to bring the Commission or its member into disrepute. An allegation that the chairman was appointed for a corrupt reason and that the outcome is predetermined is not criticism of a conclusion; it is an attack on the standing of the inquiry. It is capable of falling within the section.

Who may complain. Only a member of the Commission or an officer authorised by it, by a complaint in writing setting out the facts, the nature of the offence and the required particulars.

Where it is tried. The High Court, taking cognizance without committal.

Now change the facts. After the report is published, the same channel says the reasoning is weak, the conclusions do not follow from the evidence and the Commission ignored an important witness. That is criticism of the report and of its merits, not an attack calculated to bring the Commission into disrepute, and article 19(1)(a) protects it.

And suppose a person criticised in the report sues the State for defamation for publishing it. Section 9's second limb answers him: no suit lies in respect of the publication of any report, paper or proceedings by or under the authority of the appropriate Government or the Commission.

What beginners get wrong

That anybody may prosecute under section 10A. Only a member of the Commission or an officer it authorises may complain.

That section 10A punishes criticism of a report. The words must be calculated to bring the Commission or a member into disrepute, which is different from disagreeing with its findings.

That the Contempt of Courts Act applies to a Commission. It does not, because a Commission is not a court. Section 10A exists to fill that gap.

That section 9 protects a newspaper. It protects the Government, the Commission, its members and persons acting under their direction, including for publication by or under their authority.

Quick revision

s.9: no suit or legal proceeding for anything done in good faith under the Act, or in respect of the publication of any report, paper or proceedings by or under the authority of the Government or the Commission. The second limb is what makes a candid report possible.

s.10A(1): words spoken or intended to be read, or any act, calculated to bring the Commission or a member into disrepute: six months simple imprisonment, or fine, or both.

s.10A(2): the High Court takes cognizance without committal, on a written complaint by a member or an authorised officer of the Commission.

s.12(1) and (2): rules by the appropriate Government on members' terms, the manner and procedure of inquiries, further civil court powers under s.4(f), expenses of assessors and summoned persons, and other prescribed matters.

s.12(3): rules of the Central Government laid before each House for a total of thirty days, modification or annulment by agreement of both Houses, past acts saved. Inserted by the Delegated Legislation Provisions (Amendment) Act 1985.

Test yourself

1. What is the offence in section 10A, who may set it in motion and where is it tried? Making or publishing, by words spoken or intended to be read, any statement, or doing any act, calculated to bring the Commission or any member of it into disrepute, punishable with simple imprisonment up to six months, or fine, or both. Only a member of the Commission, or an officer of the Commission authorised in that behalf, may complain, and the complaint must be in writing setting out the facts constituting the offence, its nature and the required particulars. The High Court takes cognizance directly, without the case being committed to it.

2. Why does section 10A exist at all? Because a Commission of Inquiry is not a court, as Brajnandan Sinha v. Jyoti Narain held, so the Contempt of Courts Act does not protect it. Section 10A supplies an equivalent protection by statute, with the High Court trying the offence directly, so that an inquiry cannot be destroyed by a campaign against its standing while it is running.

3. Which limb of section 9 is the important one, and why? The second, which bars any suit or legal proceeding in respect of the publication, by or under the authority of the appropriate Government or the Commission, of any report, paper or proceedings. A report necessarily criticises named individuals, and without that protection every person criticised could sue for defamation, with the result that reports would be softened or withheld. It is therefore a precondition of a candid report.

4. What does section 12(3) show about the connection between this label and the sixth? That they are one subject. Section 12(3) is the laying procedure, the classical instrument of legislative control over delegated legislation, and it was inserted into this Act by the Delegated Legislation Provisions (Amendment) Act 1985, one of the statutes by which Parliament added laying requirements to rule-making powers on the recommendation of the Committee on Subordinate Legislation. So a legislative committee's inquiry produced a statute which inserted a legislative control into the Act governing Commissions of Inquiry.