The Commission's Composition, Staff and Assessors

"From any part of India" in clause (a) was substituted by amendment and matters: a State Commission may summon a witness from another State.

The drafting device. As chapter 160 explained for section 27 of the Lokpal Act, conferring "the powers of a civil court in respect of the following matters" borrows six enumerated powers and does not make the body a court. Section 4 is the model that the Lokpal Act, the Central Vigilance Commission Act and the Maharashtra Acts all copy.

Clause (f) is a small delegation worth noticing for Module III: further powers of a civil court may be added by rules made under section 12(2)(c). Chapter 460 reads the rule-making power and chapter 1230 the laying procedure it attracts.

Section 5A: borrowing investigators

Section 5A(1). The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services:

1. (a) in the case of a Commission appointed by the Central Government, of any officer or investigation agency of the Central Government, or of any State Government with the concurrence of that State Government;
2. (b) in the case of a Commission appointed by a State Government, of any officer or investigation agency of that State Government, or of the Central Government with the concurrence of the Central Government.

Section 5A(2). Any officer or agency whose services are so utilised may, subject to the direction and control of the Commission, exercise the investigative powers the sub-section confers.

Why this section exists. Because a Commission has no staff of its own. A retired judge given three months to find out why a bridge fell down cannot personally examine the concrete. Section 5A lets him use the machinery of a Government, and the requirement of concurrence is the federal safeguard: a State's officers cannot be commandeered by a Central Commission without the State agreeing, and the reverse.

And notice the same weakness as everywhere else in this syllabus. The investigators belong to a Government. Where the inquiry is into that Government's own conduct, the Commission is investigating through the people it is investigating. Chapter 320 identified this as one of the three constraints that actually bind an Indian oversight institution, and it binds here too. The words "subject to the direction and control of the Commission" are the protection, and they are the same words section 28(2) of the Lokpal Act uses.

Section 5B: assessors

The Commission may, for the purpose of conducting any inquiry, appoint persons having special knowledge of any matter connected with the inquiry as assessors, to assist and advise it; and the assessors are entitled to such travelling and other expenses as may be prescribed.

What an assessor is. Not a member and not a witness. A person with expertise who sits with the Commission and advises it. The idea comes from admiralty practice, where a judge trying a collision sits with nautical assessors, and it exists because a judge cannot be an engineer.

Assessor against expert witness, which is a distinction students should hold. An expert witness gives evidence, is examined and cross-examined, and his opinion is on the record and can be challenged. An assessor advises the tribunal privately and is not cross-examined. The first is evidence; the second is help with understanding evidence.

Why that distinction has teeth. A Commission that decides a technical question on an assessor's private advice, without putting that advice to the parties, is deciding on material the affected person has never seen. Sections 8B and 8C, which chapter 440 reads, are the answer, and the tension between them and section 5B is a real one worth naming.

And note that section 5B is discretionary, and expenses are prescribed by rules under section 12(2)(cc), which was itself inserted to provide for assessors' expenses.

A worked example

A Commission of one retired High Court judge is appointed by a State to inquire into the collapse of a bridge.

Composition. The notification names him. The Act says nothing about his qualification, tenure or salary; all of it is in the notification and the rules.

Section 4. He summons the municipal engineer from another State under clause (a), requires the contract file under clause (b), takes affidavits from residents under clause (c), and requisitions the inspection register from the municipal office under clause (d).

Section 5A. He needs the concrete tested and the drawings examined. He utilises the services of officers of the State's Public Works Department, who work subject to his direction and control. If he needs a Central agency, the concurrence of the Central Government is required.

Section 5B. Neither he nor his staff can read a structural drawing. He appoints a professor of structural engineering as an assessor to assist and advise him.

The tension appears here. The assessor advises that the failure was caused by a design defect rather than by poor maintenance. That conclusion, if adopted, damages the design consultant. Sections 8B and 8C require the consultant to be heard and to be able to cross-examine evidence affecting him. But the assessor is not a witness and gives no evidence to cross-examine.

How a careful Commission handles it. It puts the substance of the assessor's opinion to the affected person, invites his answer, and, if the point remains contested, takes expert evidence formally so that it can be tested. That practice is not in the Act; it follows from section 8B, and a student who works it out has understood how the sections interact.

What beginners get wrong

That the Act requires a judge. It requires nothing. The convention is strong and the statute is silent.

That a Commission has its own investigators. It borrows them under section 5A, with the concurrence of the Government they belong to.

That an assessor is a witness. He advises the Commission and is not examined or cross-examined.

That section 4 makes the Commission a civil court. It borrows six enumerated powers, and chapter 470 works the cases that hold the Commission is not a court.

Quick revision

Composition: not prescribed by the Act at all. Fixed by the notification under section 3. In practice a serving or retired judge, by convention and not by law.

s.4: the powers of a civil court in six matters: summoning and examining on oath any person from any part of India; discovery and production of documents; evidence on affidavit; requisitioning public records; issuing commissions; and any other matter prescribed.

s.5A: power to utilise the services of any officer or investigation agency of the Central or a State Government, with the concurrence of that Government, the officer acting subject to the direction and control of the Commission.

s.5B: power to appoint assessors with special knowledge to assist and advise, with travelling and other expenses as prescribed.

Assessor against expert witness: an assessor advises the tribunal and is not cross-examined; an expert witness gives evidence that can be tested.

Test yourself

1. What does the Act say about the composition of a Commission? Nothing. There is no provision on qualification, disqualification, number of members, tenure, salary or removal. Composition is fixed by the notification appointing the Commission under section 3. The practice of appointing a serving or retired judge is a convention that supplies the institution's credibility, and it is not a statutory requirement.

2. Why is the silence on composition a criticism? Because a Government appointing a Commission into its own conduct chooses, without any statutory constraint, the person who will inquire into it. Every other institution in this syllabus has a safeguard on appointment: a Selection Committee for the Lokpal, consultation with the Chief Justice and the Leader of the Opposition for the Maharashtra Lokayukta, a Committee for the Central Vigilance Commissioner. For a Commission of Inquiry there is none.

3. Explain section 5A and the safeguard built into it. It allows the Commission to utilise the services of any officer or investigation agency of the Central Government or of a State Government for conducting an investigation pertaining to the inquiry, because a Commission has no investigative staff of its own. The safeguard is federal: a Central Commission may use a State's officers only with that State's concurrence, and a State Commission may use Central officers only with the Central Government's concurrence. The officer so used acts subject to the direction and control of the Commission.

4. Distinguish an assessor from an expert witness, and say why the distinction matters. An assessor is appointed under section 5B for his special knowledge to assist and advise the Commission; he is not a witness, gives no evidence and is not cross-examined. An expert witness gives evidence which is on the record and may be tested by cross-examination. The distinction matters because a Commission that decides a technical question on an assessor's private advice decides on material the affected person has never seen, which is in tension with sections 8B and 8C; the practical answer is to put the substance of the advice to the affected person and, where it remains contested, to take formal expert evidence.