Commission of Inquiry: A ruse


The Chief Minister of J&K, Omar Abdullah and the Union Minister Farooq Abdullah are very much mistaken if they believe that their tactics will save them by buying time.  Their strident refrain “Commission, Commission” is a clumsy ruse.  People have not forgotten the “results” of the Commission of Inquiry into the Shopian outrages of 29 May, 2009.  It was headed by Justice (Retd.) Muzaffar Jan.  On June 4 Omar Abdullah explained “The Supreme Court’s sanctions would have taken at least two months to arrive and delayed the institution of the Commission.”

 Precisely.  Commission of Inquiry takes long to set up and longer to deliver their reports.  To any who question this mechanism both Omar and Farooq Abdullah ask “Do you question the judiciary?”  This insulting joke will not fool or silence anyone.  It exposes the one who asks the question.

A Commission of Inquiry is a purely fact-finding body.  It cannot give a binding order, let alone punishment.  It is for the Government appointing it to accept or reject its “recommendations”.  In this case–Omar Abdullah himself.  

Crimes are investigated by the police and the culprits are tried by a court of law.  Would the country have allowed the Government of India to set up a Commission of Inquiry in the 2 G scam with the ministers continuing in office meanwhile?  There would have been a howl of protest.  Have you ever heard of a case of crime being referred to a Commission of Inquiry rather than to a court of law after prompt police investigation?  It is simply unheard of.  Why then this quack remedy if not to buy time and silence protest?

On October 1, Justice (Retd) Bilal Nazki pointed out that neither the High Court not the State Government is competent to nominate a sitting Judge.  Only the President can after following a time-consuming procedure.  He retired as CJ of the Orissa High Court.  As Judge of the Bombay High Court, Justice Nazki was universally respected.  On October 7, we find the CM angrily telling Arnabi Goswami of Times Now he would set up a Commission.  Interestingly he was nit too sure whether an FIR had been filed or not.

The very institution has come under a cloud thanks to the Commissions of Inquiry which went hay wire.  The Ranganath Misra Commission on Delhi riots of 1984, the Thakkar-Natarajan Commission of the Fairfax Issue all three were sitting Judges of the Supreme Court.  Justice Thakkar’s Report on Indira Gandhi’s assassination detected a “needle of suspicion” against R K Dhawan, an absurdity no one believed.

Remember Justice M C Jain’s Commission on Rajiv Gandhi’s assassination? On March 24, 2001 the NDA Government set up a Commission of Inquiry to silence TEHELKA.  It will not do to silence critics by accusing them of doubting judicial integrity when they point out the absurdity of the proposal.  It is the integrity of the authors of the ruse which comes into question.

There is another fundamental flaw.  Commissions of Inquiry do not begin hearings immediately.  A preliminary hearing is held, procedure outlined and then – the police is asked to hold investigations to assist the Commission.  There is a difference between “investigations” and “inquiry” in law.  Abdul Rahim Rather, the Finance Minister rightly said, on October 2, “It is a matter of investigation”.

That is why the Commissions of Inquiry Act, 1952 empowers the Commissions, by Section 5 A, to utilise the services of “any investigation agency” of the Government – i.e. the police – “for the purpose of conducting any investigation pertaining to the inquiry”.  But for this the consent of the appointing Government is necessary.  So the Commission of Inquiry will depend on the State police itself.

A cruel hoax is said to be perpetuated on an enraged populace.  Meanwhile precious time has been wasted – precisely what the chief minister and his supporters and advisers evidently desire.
Nothing less than a CBI inquiry or a Special Investigation Team appointed by the Supreme Court will do.

On July 1, 1972, Britain’s Home Secretary Reginald Maulding resigned though he was not suspected of any wrongdoing.  But an associate John Poulson had come under police investigation and the police fell under the home secretary’s domain.

Neither Omar nor Farooq Abdullah can continue in office without affecting the integrity of the probe and debasing the offices they hold.  Their evasive statements and bland sweeping denials reveal a shocking state of affairs which neither the Congress Party nor the Government of India can condone any longer.

Views expressed are author’s own.  

Author is a senior Supreme Court Lawyer