The Commission Is Not a Court

Why it matters. The reasoning is about what makes a body a court, so it applies to every inquiring authority: a Commission under the Act of 1952, a departmental inquiry officer, a committee notified under section 11. Chapter 360 explained that it survives the repeal of the 1850 Act, because the Act was only the occasion.

Sine qua non is Latin for that without which a thing cannot be, that is the indispensable condition.

The proposition applied to a Commission under the 1952 Act

Facts. Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, [1959] SCR 279, which chapter 390 works in full, concerned a Commission appointed under section 3 of the Commissions of Inquiry Act 1952 into the administration of nine companies connected with Ram Krishna Dalmia, and a contention that Parliament or the Government had usurped the functions of the judiciary by directing such an inquiry.

Held. The Commission was merely to investigate and record its findings and recommendations, which are not enforceable proprio vigore. It has no power of adjudication in the sense of passing an order which can be enforced proprio vigore, and a clear distinction must be drawn between a decision which by itself has no force and no penal effect and a decision which becomes enforceable immediately or may become enforceable by some action being taken. Therefore the inquiry or report cannot be looked upon as a judicial inquiry in the sense of being an exercise of judicial function properly so called, and the question of usurpation by Parliament or the Government of the powers of the judicial organs cannot arise.

Why it matters. It carries the Brajnandan Sinha test into the Act this label is about, and it supplies the phrase the next chapter is named after. It also disposes of a constitutional objection that would otherwise be serious: if an inquiry were an exercise of judicial power, ordering one would offend the separation of powers.

What about the deeming provisions?

A student who has read chapter 410 will object that section 5(4) says the Commission shall be deemed to be a civil court, and section 5(5) that a proceeding before it shall be deemed to be a judicial proceeding. How can it not be a court?

The answer is what a deeming provision does. A deeming provision creates a legal fiction for a stated purpose, and outside that purpose the fiction has no effect. Read each of them and the limits are express.

Section 5(4). Deemed a civil court for offences under sections 175, 178, 179, 180 and 228 of the Penal Code committed in its view or presence, so that it may record the facts and forward the case to a magistrate. Not for any other purpose, and note that even here it cannot punish.

Section 5(5). A proceeding deemed judicial within the meaning of sections 193 and 228 of the Penal Code, so that lying to it is perjury and insulting it is an offence. The words "within the meaning of" confine the fiction to those two sections.

Section 10. Members and officers deemed public servants within the meaning of section 21 of the Penal Code.

So each fiction is bounded by the section it names, and none of them gives the Commission power to pronounce a binding judgment, which is the test.

What follows from the Commission not being a court

The Contempt of Courts Act does not apply. Hence section 10A, which chapter 460 read.

Its findings do not operate as res judicata. A finding that a person did something does not bind a court trying that person.

No appeal or revision lies from it. The remedy against a Commission is a writ petition, and chapter 500 sets out the narrow grounds.

Article 20(2) is not engaged. Being adversely found against by a Commission is not being prosecuted and punished, so a subsequent prosecution is not double jeopardy.

And the Evidence Act does not bind it. Section 8 lets it regulate its own procedure, and section 5(2) speaks of information useful for, or relevant to, the subject matter, a wider standard than the Evidence Act's.

A worked example

A Commission finds that a hospital administrator falsified purchase records.

Is he convicted? No. There has been no trial, no charge and no verdict.

Can he be dismissed on the finding alone? Not without an inquiry satisfying article 311(2), because the Commission's finding is not a determination of his rights. Chapter 360 set out the article 311 machinery.

Can the finding be used at his criminal trial? His own statements to the Commission cannot, by section 6, and chapter 420 read it. The Commission's findings are not evidence at all; the prosecution must prove its case afresh.

Can he appeal against the finding? There is no appeal. He may petition the High Court under article 226, and the grounds are narrow.

Then what has the finding done to him? Ended his career, in all probability. That is the paradox at the centre of this label: a document with no legal force and enormous practical force, which is exactly why sections 8B and 8C were inserted in 1971 and why chapter 440 called them the amendment that changed the character of an Indian inquiry.

Distinctions: three bodies compared

What beginners get wrong

That a Commission headed by a Supreme Court judge is a court. The identity of the member is irrelevant to the test.

That section 5(4) makes it a civil court. It deems it one for five named Penal Code offences committed in its presence.

That a Commission's finding of guilt is a conviction. It is a finding of fact in a report and creates no legal liability.

That the person found against has no remedy. He has a writ petition, and he has the section 8B and 8C rights during the inquiry, which is where the real protection lies.

Quick revision

The test, from Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66: 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 a court.

Applied, in Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538: a Commission is merely to investigate, record findings and recommend; it has no power of adjudication in the sense of passing an order enforceable proprio vigore, so the inquiry is not a judicial inquiry and no usurpation of judicial power arises.

The deeming provisions are bounded: s.5(4) a civil court for five Penal Code offences in its presence; s.5(5) a judicial proceeding within sections 193 and 228; s.10 public servants within section 21.

Consequences: no Contempt of Courts Act, hence s.10A; no res judicata; no appeal, only article 226; no double jeopardy under article 20(2); and the Evidence Act does not bind.

Test yourself

1. State the test for whether a body is a court and the case it comes from. The pronouncement of a definitive judgment is the essential sine qua non of a court, and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a court. It comes from Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66, where the Supreme Court held that a Commissioner under the Public Servants (Inquiries) Act 1850 was not a court and set aside a conviction for contempt founded on the contrary view.

2. How did the Supreme Court apply that test to a Commission under the 1952 Act? In Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, it held that the Commission is merely to investigate, record its findings and make recommendations which are not enforceable proprio vigore, that it has no power of adjudication in the sense of passing an order enforceable of its own force, and that a clear distinction must be drawn between a decision which by itself has no force or penal effect and one which is or may become enforceable. It followed that the inquiry is not a judicial inquiry and that neither Parliament nor the Government usurps judicial power by ordering one.

3. If a Commission is not a court, why is lying to it perjury? Because section 5(5) deems any proceeding before the Commission to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. A deeming provision creates a fiction for a stated purpose only, and the words within the meaning of confine it to those two sections. It does not make the Commission a court for any other purpose, and in particular does not give it power to pronounce a binding judgment.

4. List four consequences of the Commission not being a court. The Contempt of Courts Act does not apply to it, which is why section 10A creates a separate offence triable by the High Court. Its findings do not operate as res judicata and do not bind a court trying the same person. No appeal or revision lies from it, the only remedy being a writ petition on narrow grounds. And article 20(2) is not engaged, so an adverse finding is no bar to a subsequent prosecution.