Inquiry Commission — a farce?

We have almost a genetic tendency to abuse, distort, corrupt or pervert any public institution created for public good or in public interest. This is what has actually happened to enquiry commissions constituted under the Commission of Enquiry Act 1955.

An institution meant for getting information about what, why and how of major events of public importance like serious disturbances, major scandals, natural calamities among others, has been converted into a government's agency to fool people, to protract the discovery of truth and to serve the government's narrow, political interests. Take a look at the Nanavati Commission appointed in 2002 by the Modi government to enquire into the Godhra train burning and post-Godhra communal carnage.

To pre-empt the UPA government from appointing another commission to enquire into the role of the chief minister and his government, the Gujarat government expanded the Terms of Reference of the commission so as to cover enquiring into specifically the role and conduct of chief minister Modi, ministers and high officials during the pre-Godhra and post-Godhra riots. 

Ten years have already passed, more than six crores of rupees have been spent and yet the truth, otherwise known to everyone in Gujarat, about the culpability and complicity of Modi government has not seen the light of the day.

On the contrary, at a politically convenient time, before 2007 Assembly elections, the commission submitted the first report about Godhra train burning and unjustifiably gave a clean chit to Narendra Modi. What was to be really enquired was Modi's role in post-Godhra massacre of Muslims, not Godhra train burning case. This is what the amended Terms of Reference specifically ask the Commission to do, and yet the commission even after many applications and important developments, exposing Modi's role and conduct during the riots, refuses even to examine Modi on the special ground of commission's discretion. This is really not a matter of discretion under Section 8 (b) of the Act, but a matter of statutory duty flowing from the very Terms of Reference. So far, the commission has worked in such a way as to lose its credibility and legitimacy. Its final report will be totally useless for the people except it will serve the interest of Modi government in the coming Assembly elections 2012. What a mockery of truth, justice and public morality.

Time has therefore come, for a fresh look, at the Act of 1955. Either scrap the Act or amend or enact a new law to make the enquiry commission powerful, independent, effective, transparent and accountable. One, the need for public enquiry into major socio-economic or political events in a modern complex society cannot to over-emphasised. Such events are multi-dimensional generally, beyond the purview of criminal law or civil law. Only a public enquiry can find out the truth about such events which will have great public significance.

Two, the enquiry Commission has its rationale in people's right to know and to be informed about such major events, under Article 19 (1) (a) of the Constitution. It is not a question of government's privilege or discretion, but of citizen's fundamental right to know.

Three, such an independent enquiry Commission should be recognised as people's agency of good and transparent governance, not government's instrumentality for its narrow political purposes. Four, it is absolutely important that appointment, composition and Terms of Reference of the commission should not be left to the discretion of the government as at present, or should be entrusted to a widely representative, independent body of eminent persons. Five, the judges need not always be appointed as members of commission for two main reasons - one, the judges by training experience and institutional constraint not always fit to perform this task involving complex socio- economic and political elements; and two, the judges should not be dragged into such public issues which would ultimately compromise the judge's authority, independence and legitimacy. Six, the Commission should be sufficiently empowered so as to enable it to enquire in depth and exhaustively.  Seven, the commission should be completely independent of political, commercial or professional connections. Eight, the commission should report the independent body which alone will decide actions to be taken thereon.

Nine, the report should be published and its recommendations must be accepted and implemented. Lastly, the commission should have complete legal status and its report may or may not be used in civil or criminal proceedings, it should not be bereft of any legal significance.

The commission falls clearly within the constitutional and administrative law and must be subject to judicial review with ofcourse its appropriate judicial standards. Such commissions are today much more needed when heads of state and public authorities are more and more engaging in crimes against humanity, violations of the constitution and operation of the people and they may not be brought within the purview or ordinary criminal law but should not escape from the domain of human rights. Only such public enquiries with legal powers can do the work.