The Reforms This Act Needs

The objection. A Commission that has become pointless, because the matter has been settled elsewhere or its subject has disappeared, should be capable of being ended without a debate.

The answer. Reasons and publication cost nothing where the winding up is genuine, and everything where it is not.

Three: make the section 5 powers automatic. Section 5

The proposal. That sub-sections (2) to (5) apply to every Commission, or apply on the Commission's own request rather than at the Government's option.

The defect. Chapter 410. The Government under inquiry decides whether the Commission may search its offices.

The objection. Search and seizure powers are intrusive and should not attach automatically to every minor inquiry.

The answer. Let the Commission decide, on recorded reasons. It is a judge; the choice is exactly the kind a judge makes.

Four: attach a consequence to the report. Section 3(4)

The proposal. That the memorandum of action taken must state, for each finding and each recommendation, whether it is accepted and if not why; that where a recommendation is not accepted the Government must lay the reasons; and that a failure to lay within six months results in the report being published by the Commission or by the presiding officer of the House.

The defect. Chapter 510. Section 3(4) requires only that the report and a memorandum be laid, and attaches no consequence to a failure to lay.

The objection. A duty to respond finding by finding would be burdensome and would invite litigation over the adequacy of the response.

The answer. It is exactly what section 48 of the Lokpal Act and section 14 of the Central Vigilance Commission Act 2003 already require of the Government for advice not accepted, and neither has produced the predicted flood.

Five: publicity as the default. Section 8

The proposal. That a Commission shall sit in public unless it records that the public interest requires otherwise, which is the English rule of 1921 that chapter 370 read.

The defect. Chapter 430 and chapter 540, gap three.

The objection. Some evidence, about security or about a person against whom nothing is found, must be taken privately.

The answer. The proposal preserves that. It changes the default and requires the reason to be recorded.

Six: regulate the length of cross-examination. Sections 8B and 8C

The proposal. An express power in the Commission to regulate the manner and length of cross-examination, and to require several persons with a common interest to be represented together.

The defect. Chapter 440. The 1971 rights are right and they are the largest single cause of delay.

The objection. Any power to limit cross-examination is a power to limit the defence.

The answer. The power is to regulate manner and length, not to refuse the right, and section 8 arguably contains it already. Putting it beyond argument protects the right by making it affordable.

Seven: say something about appointment. A new provision

The proposal. That a Commission inquiring into the conduct of a Government be appointed in consultation with the Chief Justice of the High Court, or from a panel he supplies.

The defect. Chapter 400 and chapter 540, gap six. The Act says nothing, so the Government under inquiry chooses its own inquirer.

The objection. Consultation would delay urgent appointments, and it would draw the judiciary into the executive's choice, which chapter 1740 shows is itself contested.

The answer. The same objection was made and answered when selection committees were built for the Central Vigilance Commissioner, the Director of the Central Bureau of Investigation and the Lokpal, and chapters 610 and 800 show those safeguards being enforced by courts.

Eight: provide for money and staff. A new provision

The proposal. That the expenses of a Commission be charged on the Consolidated Fund, that it be entitled to a Secretary and staff of stated rank, and that its expenditure be reported with its report.

The defect. Chapter 540, gap seven. There is no financial provision in the Act at all.

The objection. A Commission is temporary and a permanent charge is inappropriate.

The answer. The charge would be on the expenditure of the particular Commission, and the reporting of expenditure costs nothing and answers the unverifiable argument that inquiries are wasteful.

Two reforms that are proposed and should be resisted

Giving the Commission power to punish. For the reasons at the head of this chapter. It would create a court by notification.

Making the findings admissible in evidence. It would repeal section 6 in substance, and chapter 420 explained what section 6 buys: candour, and the avoidance of a collision with article 20(3). An inquiry whose evidence could convict would be an investigation conducted without the protections of an investigation.

What already exists and is under-used

The resolution route in section 3(1). A Commission appointed because each House resolved cannot be wound up by the executive at all, only by another resolution under section 7(1)(b). Chapter 390 explained why the route is rarely taken; chapter 430 explained why it is the only real protection the Act contains.

Judicial pressure on implementation. Chapter 530 recorded the Supreme Court directing a State Government to file an affidavit on the implementation of a Commission's recommendations. That is not in the Act and it works.

Sections 8B and 8C. Chapter 500 concluded that the most effective legal challenge is not to the notification but to the conduct of the inquiry, and those sections supply it.

A worked answer: how to write MU's third question

Open by refusing the premise politely. A Commission is a fact-finding body by design and by decision, and the design is what keeps it constitutional.

Then say where accountability can be attached: to the report, to the process, and to the Government.

Then give four or five reforms with the section each amends and the objection to each. Depth beats a list.

Then name what already exists and is not used: the resolution route, and the courts.

Close on the honest assessment. The Act gives the appointing Government control over every variable of an instrument designed to examine it. No amount of power given to the Commission answers that. What answers it is taking some of those variables away from the Government: the power to end the inquiry, the power to withhold coercive powers, the power to sit on the report, and the power to choose the inquirer.

Quick revision

First proposition: do not make the Commission a court. Ram Krishna Dalmia held that the absence of adjudicatory power is why an inquiry is not a usurpation of judicial function, and section 6 buys candour at the price of admissibility.

Eight reforms: cap unexplained extensions, s.3(1); restrict winding up, s.7; make the section 5 powers automatic or available on the Commission's own reasons; require a memorandum answering each finding, and publication on default, s.3(4); make public sitting the default, s.8; give an express power to regulate cross-examination, ss.8B and 8C; provide for consultation on appointment; and provide for money, staff and reporting of expenditure.

Two to resist: power to punish, and repeal of section 6.

Three already available: the resolution route in s.3(1); judicial pressure on implementation; and challenges under ss.8B and 8C.

Test yourself

1. Why should a Commission of Inquiry not be given power to punish? Because the absence of that power is what makes the institution constitutional. In Ram Krishna Dalmia v. Justice S.R. Tendolkar the Supreme Court held that the Commission has no power of adjudication in the sense of passing an order enforceable proprio vigore, and that for that reason the inquiry is not an exercise of judicial function, so no usurpation of judicial power arises when a Government orders one. A body appointed by executive notification with power to convict or dismiss would be a court created without the appointment safeguards, the appeal or the evidentiary rules of a court.

2. State four reforms with the section each would amend and the objection to each. Cap unexplained extensions under section 3(1), with each extension laid with reasons; the objection is that some inquiries genuinely need years, answered by capping unexplained rather than actual extension. Restrict the power to wind up under section 7, either requiring reasons laid before the House with publication of the evidence taken or allowing it only by resolution where the inquiry is into a Government; the objection is that a pointless Commission should be endable without debate, answered by the low cost of recording reasons. Make the section 5 powers available on the Commission's own recorded reasons; the objection is that search powers are intrusive, answered by giving the choice to a judge rather than to the Government. And require the memorandum under section 3(4) to answer each finding, with publication on default; the objection is burden and litigation, answered by pointing to section 48 of the Lokpal Act and section 14 of the CVC Act, which already require it.

3. Which existing features of the law are under-used? The resolution route in section 3(1), because a Commission appointed on a resolution of each House can be ended only by another resolution under section 7(1)(b), which is the sole real protection in the Act. Judicial pressure on implementation, which is not in the Act but has been applied, as when the Supreme Court directed a State Government to file an affidavit on implementation of a Commission's recommendations. And challenges to the conduct of an inquiry under sections 8B and 8C, which chapter 500 identified as the ground most likely to succeed.

4. Summarise the case for reform in one sentence. The Act gives the appointing Government control over every variable of an instrument designed to examine that Government, so the reform that matters is not giving the Commission more power but taking some of those variables away: the power to end the inquiry, the power to withhold coercive powers, the power to sit on the report, and the power to choose the person who will inquire.