The English Model: the Tribunals of Inquiry (Evidence) Act 1921

Reporting to Parliament, and thence to the public.

No power to determine liability. The tribunal finds facts. Punishment, if any, follows elsewhere. This is the same limitation Indian law expresses through the recommendatory character of the report, which chapter 480 works.

The Salmon principles, 1966

The Royal Commission on Tribunals of Inquiry under Lord Justice Salmon was appointed after criticism of the procedure of several inquiries, and reported in 1966. Its six principles concern the treatment of a person whose conduct is in question, and they are the foundation of modern inquiry procedure in the common law world.

1. Before a person is involved in an inquiry, the tribunal must be satisfied that there are circumstances which affect him and which the tribunal proposes to investigate.
2. He should be informed of any allegations against him and of the substance of the evidence in support of them.
3. He should be given an adequate opportunity to prepare his case, and of being assisted by legal advisers, and his legal expenses should normally be met out of public funds.
4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
5. Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard.
6. He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

Why these matter for an Indian answer. Because sections 8B and 8C of the Indian Act, inserted by the amendment of 1971 and read in chapter 440, are the Salmon principles in Indian statutory form: the right of a person likely to be prejudicially affected to be heard, and the right of cross-examination and legal representation. India did not have them in 1952 and State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, which chapter 490 works, was decided before they existed.

And the third principle is the one India has not adopted. Salmon said legal expenses should normally be met out of public funds. Section 8C gives a right to be represented; it does not fund the representation. Compare section 55 of the Lokpal Act, which chapter 205 read: there the institution must provide legal assistance on request. So Indian law funds a defence before the Lokpal and not before a Commission of Inquiry, which is an inconsistency worth naming in an answer about reform.

What India took, and what it changed

The first row is the important one. In Britain the initiative is Parliament's, and a Government that does not want an inquiry must persuade both Houses to refuse one. In India the initiative is ordinarily the Government's, with a resolution of the House as an alternative that obliges the Government to appoint. Chapter 390 reads section 3 and shows how much turns on that difference.

The second row matters too. The Indian Act dropped "urgent". That widens the section, and it is one reason India appoints so many more Commissions than Britain appoints tribunals.

The sixth row is India's own contribution and a large one. Section 6, which chapter 420 reads, makes a statement to the Commission inadmissible against its maker in any civil or criminal proceeding. Britain has no such general rule. It is why an Indian Commission can get people to talk, and it is also why its findings so rarely lead to a conviction.

A worked example

Suppose the Kuthuparamba firing of chapter 520 had happened in England in 1930.

Both Houses would have to resolve that the matter was one of urgent public importance. A Government with a majority could prevent it; a Government under pressure would find it hard to.

The tribunal would have the powers of the High Court, so a witness who refused to attend could be dealt with as for contempt.

It would sit in public. The evidence would be given openly and reported.

A person whose conduct was in question would, after 1966, be entitled to the six Salmon protections, including publicly funded legal representation.

And the statements made to it would be usable. There is no equivalent of the Indian section 6, so the evidence could feed a prosecution.

Now put the same facts in India in 1997. The State Government appoints, or the Assembly resolves. The Commission has the civil court powers of section 4, and the additional powers of section 5 only if the Government notifies them. It decides for itself whether to sit in public, under section 8. The person whose conduct is in question has the section 8B and 8C rights but pays for his own lawyer. And under section 6 nothing he says can be used against him.

The comparison shows both the strength and the weakness of the Indian design in one place: easier to appoint, safer for witnesses, and much harder to convert into consequences.

What beginners get wrong

That the 1921 Act is still the English law. It was replaced by the Inquiries Act 2005, under which a Minister rather than Parliament causes an inquiry to be held. The 1921 Act is the model the Indian Act follows and the reference point for the Salmon principles.

That the Salmon principles are Indian law. Sections 8B and 8C give effect to two of them. The principle about public funding of legal expenses has not been adopted.

That an Indian Commission must sit in public. Section 8 lets the Commission decide.

That India simply copied the 1921 Act. It moved the power of appointment to the Government, dropped the requirement of urgency, and added the inadmissibility rule in section 6.

Quick revision

Tribunals of Inquiry (Evidence) Act 1921, passed after a Select Committee of the House of Commons found it could not investigate the Ministry of Munitions allegations. Tribunal established on a resolution of both Houses on a definite matter of urgent public importance, with the powers of the High Court, sitting in public unless it decides otherwise.

Salmon Commission 1966, six principles: the tribunal must be satisfied that circumstances affect the person; he must be told the allegations and the substance of the evidence; he must have time and legal advice, normally at public expense; he must be able to give his case in public through his own lawyer; his material witnesses should be heard; and he must be able to cross-examine evidence affecting him.

India took: the tribunal idea, the compellable evidence, the one matter design, the report.

India changed: appointment by the Government; urgency dropped; powers enumerated in section 4 with more available by notification under section 5; sitting in public at the Commission's choice; and section 6, statements inadmissible against the maker.

Sections 8B and 8C are Salmon principles one, two, four and six in Indian statutory form. Principle three, public funding, was not adopted.

Test yourself

1. Why did Britain pass the Tribunals of Inquiry (Evidence) Act 1921? Because a Select Committee of the House of Commons appointed in 1921 to inquire into allegations of bribery of officials of the Ministry of Munitions found that it could not do the work: it could not effectively compel evidence, its members were partisan, and its procedure was unsuited to determining whether named individuals had behaved improperly. Parliament concluded that a House is a poor tribunal of fact in such a case and created a statutory tribunal instead.

2. State the Salmon principles and say which India has adopted. That the tribunal must be satisfied there are circumstances affecting the person which it proposes to investigate; that he be informed of the allegations and the substance of the evidence; that he have adequate opportunity to prepare and legal assistance, normally at public expense; that he be able to be examined by his own lawyer and state his case in public; that his material witnesses be heard if reasonably practicable; and that he be able to cross-examine evidence affecting him. India gave effect to the first, second, fourth and sixth through sections 8B and 8C of the Commissions of Inquiry Act, inserted in 1971. The principle of public funding of legal expenses has not been adopted, although section 55 of the Lokpal Act does exactly that for proceedings before the Lokpal.

3. Give three differences between the 1921 model and the Indian Act of 1952. Appointment: in Britain on a resolution of both Houses, in India ordinarily by the appropriate Government, with a resolution of the House as an alternative that obliges it to appoint. Trigger: a definite matter of urgent public importance in Britain, a definite matter of public importance in India, urgency having been dropped. Evidence: in Britain a statement to the tribunal may be used, whereas section 6 of the Indian Act makes a statement inadmissible against its maker in any civil or criminal proceeding, which is why Indian inquiries elicit evidence readily and convert into convictions rarely.

4. Why does the difference in who appoints matter? Because it decides who controls whether an inquiry happens. Where both Houses must resolve, a Government that does not want an inquiry must persuade the legislature to refuse one, which is politically costly. Where the Government appoints, an inquiry into the Government's own conduct depends on the Government deciding to order it, and the alternative route by resolution requires the House to act against the majority that sustains the Government.