The Public Servants (Inquiries) Act 1850, and Its Repeal

Held. The conviction was set aside. A Commissioner holding an inquiry under the 1850 Act is not a court. Taking the definitions of "Judge" and "Court of Justice" in sections 19 and 20 of the Indian Penal Code, the Court held that the pronouncement of a definitive judgment is the essential sine qua non of a court, and that unless and until a binding and authoritative judgment can be pronounced by a person or body, it cannot be predicated that he or they constitute a court. The Commissioner could only report; his findings bound nobody.

Why it matters, and why it survives the repeal. The reasoning is about what makes a body a court, not about the 1850 Act. It applies unchanged to a Commission under the 1952 Act, to a departmental inquiry officer and to any other inquiring authority, and chapter 470 uses it for exactly that purpose. Sine qua non is Latin for something without which a thing cannot be: the indispensable condition.

The repeal, verified

India Code's own catalogue title for the Act reads "The Public Servants (Inquiries) Act, 1850, 37 of 1850 (Rep., Act 02 of 2018)." A catalogue line is not authority, so the repealing Act was fetched and read.

The Repealing and Amending Act, 2017, Act No. 2 of 2018, assented on 5 January 2018, is an Act to repeal certain enactments and to amend certain other enactments. Its section 2 gives effect to the First Schedule, headed REPEALS, which lists the year, number, short title and extent of repeal of each enactment. Two rows matter here:

1850, XXXVII, The Public Servants (Inquiries) Act, 1850. Extent of repeal: the whole.

1897, I, The Public Servants (Inquiries) Amendment Act, 1897. Extent of repeal: the whole.

So the Act and its amending Act are both gone, in their entirety, from 5 January 2018.

Why this needs saying loudly. Standard treatments of this subject, including material a student is likely to be given, still describe the 1850 Act as the statute governing formal inquiries against public servants. A candidate who writes that in April 2027 is stating as current a law that has been repealed for over nine years. Chapter 470's reasoning is safe; the statute is not.

What a Repealing and Amending Act is

A Repealing and Amending Act is a periodic tidying statute. It does not change the law. It removes from the statute book enactments that have become obsolete, spent, unnecessary or superseded, and corrects minor errors in others. India has passed them regularly since the nineteenth century.

What that tells you about the 1850 Act. Parliament did not repeal it because it disapproved of it. It repealed it because the field had been occupied by other law and the Act had become unnecessary. Which is the next question.

What stands in its place

Article 311, the constitutional protection. No person who is a member of a civil service of the Union or of a State, or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed; and no such person shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso excludes the inquiry in three situations, including where the person is dismissed on the ground of conduct which has led to his conviction on a criminal charge.

Article 309, the source of the rules. Subject to the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts; and until such an Act is made, the President or the Governor may make rules. The disciplinary rules under which every departmental inquiry in India is actually conducted, such as the Central Civil Services (Classification, Control and Appeal) Rules 1965 and the All India Services (Discipline and Appeal) Rules 1969, are made under that power.

Article 310, the doctrine of pleasure. Every person in the defence services or the civil service of the Union holds office during the pleasure of the President, and every person in the civil service of a State during the pleasure of the Governor, except as the Constitution expressly provides. Article 311 is the principal express exception, and the two must be read together: pleasure is the rule and article 311 is the safeguard on it.

So the modern architecture is this. Article 310 states the tenure. Article 311 requires a charge and a hearing before dismissal, removal or reduction in rank. Rules under article 309 supply the procedure. The Commissions of Inquiry Act 1952 supplies a public inquiry where the matter is one of public importance. The Lokpal and Lokayuktas Act 2013 supplies a corruption inquiry with prosecution at the end. Nothing is missing that the 1850 Act supplied.

A worked example

A Deputy Secretary is alleged in 1960, and again in 2026, to have falsified a tender record.

In 1960. The Government could direct a formal inquiry by commissioners under the Public Servants (Inquiries) Act 1850, on articles of charge, with a report; and article 311 already required a charge and a hearing before dismissal. The 1850 procedure was one way of satisfying that requirement.

In 2026. The 1850 Act does not exist. The disciplinary authority proceeds under the service rules made under article 309: a charge sheet with articles of charge and a statement of imputations, an inquiring authority, an opportunity to cross-examine and to lead evidence, an inquiry report, and a decision by the disciplinary authority, all satisfying article 311(2). If the matter is one of public importance, a Commission of Inquiry may be appointed under section 3 of the 1952 Act in addition, though its statements are inadmissible against the maker under section 6. If the allegation is of an offence under the Prevention of Corruption Act, the Lokpal route in Chapter V of the 2013 Act is available.

Notice that the officer is better protected in 2026, not worse. Article 311's inquiry is a constitutional right; the 1850 Act's inquiry was a statutory procedure the Government could choose to use.

What beginners get wrong

That the 1850 Act still governs departmental inquiries. It was repealed in whole on 5 January 2018.

That the repeal changed the law. A Repealing and Amending Act removes what has become unnecessary; the field had already been occupied by article 311 and the rules under article 309.

That Brajnandan Sinha fell with the Act. It did not. Its reasoning is about what makes a body a court and applies to every inquiring authority.

That article 311 protects everybody. It protects members of a civil service of the Union or a State and holders of a civil post, against dismissal, removal or reduction in rank. It does not protect a Minister, and it does not cover every adverse action.

Quick revision

The Public Servants (Inquiries) Act 1850, Act XXXVII of 1850, provided a formal inquiry by commissioners on articles of charge into a public servant not removable without the sanction of Government.

REPEALED IN WHOLE by the Repealing and Amending Act 2017, Act 2 of 2018, assented 5 January 2018, First Schedule, together with the Public Servants (Inquiries) Amendment Act 1897.

Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66: a Commissioner under the 1850 Act is not a court, because the pronouncement of a definitive judgment is the sine qua non of a court. The reasoning survives the repeal.

What replaced it: article 310 pleasure, article 311 charge and hearing before dismissal, removal or reduction in rank, article 309 rules supplying the procedure, the Commissions of Inquiry Act 1952 for a public inquiry, and the Lokpal and Lokayuktas Act 2013 for corruption.

Test yourself

1. What did the Public Servants (Inquiries) Act 1850 provide, and what is its present status? It provided that where the Government considered a public servant not removable without its sanction should be formally inquired into on charges of misconduct, an inquiry could be directed before commissioners, on articles of charge furnished to the officer, with evidence taken and a report made. It was repealed in its entirety, along with the Public Servants (Inquiries) Amendment Act 1897, by the First Schedule to the Repealing and Amending Act 2017, Act 2 of 2018, which received assent on 5 January 2018.

2. State the holding in Brajnandan Sinha v. Jyoti Narain and explain why it still matters. That a Commissioner holding an inquiry under the 1850 Act is not a court, and therefore not a court subordinate to the High Court for the purposes of the Contempt of Courts Act, because the pronouncement of a definitive judgment is the essential sine qua non of a court and unless a binding and authoritative judgment can be pronounced the body is not one. It still matters because the reasoning is about what makes a body a court rather than about the repealed Act, so it applies to a Commission of Inquiry under the 1952 Act, to a departmental inquiry officer and to any other inquiring authority.

3. What stands in the place of the 1850 Act today? Article 310 states that civil servants hold office during pleasure. Article 311 requires that no such person be dismissed or removed by an authority subordinate to the appointing authority, and that none be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. Rules made under article 309, such as the Central Civil Services (Classification, Control and Appeal) Rules 1965, supply the procedure. Where the matter is one of public importance a Commission may be appointed under section 3 of the Commissions of Inquiry Act 1952, and where an offence under the Prevention of Corruption Act is alleged the Lokpal and Lokayuktas Act 2013 applies.

4. What is a Repealing and Amending Act, and what does its use here tell you? It is a periodic tidying statute that removes from the statute book enactments which have become obsolete, spent, unnecessary or superseded, and corrects minor errors, without changing the substantive law. Its use here tells you that Parliament regarded the 1850 Act as unnecessary rather than objectionable, the field it occupied having been taken over by article 311 with the rules made under article 309.