Vacancy, Cesser and the Continuity of an Inquiry

The one real safeguard is the resolution route. A Commission appointed because the House resolved cannot be ended by the executive at all, only by another resolution. Chapter 390 explained why that route is so rarely used, and section 7 is a reason to use it more.

Section 8: the Commission's own procedure

The Commission shall, subject to any rules that may be made in this behalf, have power to regulate its own procedure, including:

1. the fixing of the places and times of its sittings; and
2. deciding whether to sit in public or in private.

What "regulate its own procedure" means. A Commission is not bound by the Code of Civil Procedure or the Code of Criminal Procedure except where a provision says so, and is not bound by the Indian Evidence Act. It decides how it will hear, in what order, and on what material, subject to sections 8B and 8C and to natural justice.

The public or private choice is the important half. Chapter 370 recorded that the British Act of 1921 required the tribunal to sit in public unless it decided otherwise in the public interest. The Indian Act reverses the default: the Commission simply decides.

Why that matters. Publicity is the mechanism by which an inquiry restores confidence, which chapter 350 took from the 1977 decision as the purpose of the whole Act. An inquiry conducted in private produces a report and no public process, and a report can be withheld under section 3(4) if the Government chooses. So the two discretions compound.

The counter-argument, which is real. Evidence about national security, about the identity of informants, or about a person against whom nothing is ultimately found, is better taken in private. Chapter 30 noted that the classical ombudsman investigates in private for that reason. A rule requiring publicity in every case would be wrong.

Where the balance should sit is a good examination question, and the defensible answer is the British one: public as the rule, private where the Commission records that the public interest requires it.

And note "subject to any rules". Section 12(2)(b) allows rules on the manner of holding inquiries and the procedure to be followed, so the Government may confine the Commission's procedural discretion by rules.

Section 8A: continuity

Where the Commission consists of two or more members, it may act notwithstanding the absence of any of them or a vacancy among them, and the inquiry is not interrupted by reason of a vacancy or a change in the constitution of the Commission.

Why the section was needed. Indian inquiries run for years. Chapter 540 puts figures to that. Over five or seven years a member may die, resign, be elevated or be unavailable. Without section 8A a defect of that kind might vitiate the proceedings or require the inquiry to begin again, and years of evidence would be lost.

What it does not do. It does not allow a single-member Commission to continue after that member has gone; there is nobody to continue. It addresses absence, vacancy and change in a multi-member body.

The natural justice question it raises. A member who joins late has not heard the earlier witnesses. In a court, a judge who has not heard the evidence cannot decide on it. Section 8A displaces that rule for a Commission, and the justification is that a Commission finds facts for a report rather than deciding a case, so the objection is weaker. It remains a real one, and a Commission that is well conducted will have the incoming member read the record and will hear any affected person who asks to be heard again.

A worked example

A Commission of three is appointed by a State Government into a communal riot, with a two year time limit later extended twice.

Year one. It sits in public in the district, under section 8, because the credibility of the exercise depends on being seen. It fixes its own dates and places.

Year two. The senior member dies. Section 8A: the inquiry is not interrupted; the remaining two continue and a replacement is appointed.

The replacement has not heard eighty witnesses. Section 8A permits him to sit. Good practice, and sections 8B and 8C, require that any person whose conduct is in question and who asks be allowed to address the reconstituted Commission.

Year three. The Commission begins to record findings about the conduct of senior police officers. A new Government takes office.

Section 7(1)(a). The new Government forms the opinion that the Commission's continued existence is unnecessary and notifies that it shall cease to exist from a specified date. It need give no reasons. The evidence of three years is not published. There is no report.

What could have prevented that. If the Commission had been appointed on a resolution of the Legislature, section 7(1)(b) would have required a resolution to end it. That is the only protection the Act gives, and it is the reason chapter 550 lists the reform of section 7 first.

What beginners get wrong

That a Commission runs until it reports. Section 7 allows the appointing Government to end it.

That the Government must give reasons for ending it. The section requires only an opinion that continued existence is unnecessary.

That a Commission must sit in public. Section 8 leaves the choice to the Commission, unlike the British Act of 1921.

That a change of members restarts the inquiry. Section 8A provides the opposite.

Quick revision

s.7(1)(a): the appropriate Government may notify that a Commission not appointed on a resolution shall cease to exist if of opinion that its continued existence is unnecessary. No reasons required.

s.7(1)(b): a Commission appointed on a resolution ceases only if a resolution for discontinuance is passed.

s.7(2): the notification specifies the date.

s.8: the Commission regulates its own procedure, subject to rules, including the places and times of sittings and whether to sit in public or in private.

s.8A: an inquiry is not interrupted by a vacancy or change in the constitution of a Commission of two or more members.

The criticism: section 7 lets the Government that is being inquired into end the inquiry, without reasons and without publication of what has been collected. The resolution route under section 3(1) is the only protection the Act supplies.

Test yourself

1. How may a Commission of Inquiry be brought to an end? Under section 7(1)(a), where it was appointed otherwise than on a resolution, by a notification of the appropriate Government declaring that it shall cease to exist, made if that Government is of opinion that its continued existence is unnecessary. Under section 7(1)(b), where it was appointed in pursuance of a resolution passed by each House of Parliament or by the State Legislature, only if a resolution for its discontinuance is passed. In each case the notification specifies the date from which it ceases.

2. Why is section 7 the sharpest criticism of the Act? Because almost every Indian Commission is appointed by a Government under the discretionary limb of section 3(1), and can therefore be wound up by that Government on nothing more than its opinion that continued existence is unnecessary, without recorded reasons, without consulting the Commission, without completing or publishing a report and without publishing the material collected. Where the inquiry is into the conduct of that Government, the body under inquiry controls whether the inquiry finishes.

3. What does section 8 leave to the Commission, and how does that differ from the English model? It leaves the Commission power, subject to any rules, to regulate its own procedure, including fixing the places and times of its sittings and deciding whether to sit in public or in private. The Tribunals of Inquiry (Evidence) Act 1921 required the tribunal to sit in public unless it decided otherwise in the public interest, so publicity was the default; the Indian Act makes it simply a matter for the Commission, which matters because publicity is the mechanism by which an inquiry restores confidence.

4. What problem does section 8A solve, and what objection does it raise? It solves the problem of long inquiries: over the years an Indian Commission often takes, a member may die, resign or become unavailable, and without the section a vacancy or change in constitution might vitiate the proceedings or require the inquiry to begin again. The objection is that a member who joins late has not heard the earlier evidence, which in a court would prevent him deciding on it; the answer is that a Commission finds facts for a report rather than deciding a case, and good practice requires the incoming member to read the record and to hear again any affected person who asks.