Daily Times

In the subcontinent, during
the British period, as regards the Native States, appointment of Commissions by the Viceroy in the misconduct of the rulers was well established. In or about 1904, the Maharajah of Panna was removed as a result of the findings given by the Commission appointed by the Viceroy. The Maharajah filed a Petition for leave to appeal to the Privy Council. The Privy Council observed that the Commission in question was one appointed by the Viceroy himself for the information of his own mind, in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity. It was not a court from which an appeal lies to His Majesty in Council {1904 (32) Calcutta 1}.

Before the enactment of the Tribunals of Inquiry Act 1921, inquiries were held by the Committees of Parliament in the UK and Committees of the Congress in the US. However, when President John F Kennedy was assassinated a Commission of Inquiry was appointed, which was headed by Chief Justice Warren. Its report was comprehensive and valuable. Even the 9/11 incident was inquired into by a commission and its report is a revealing document.

In the UK, a number of commissions were constituted to hold inquiries. Suffice it to refer to the commission appointed in1963 to inquire into the conduct of Mr Profumo, Secretary of State for War, who made a personal statement in the House of Commons denying that there was any truth that he had a liaison with Christine Keeler. He afterwards admitted that this statement was untrue. There were wild rumours; it was alleged that there had been a serious security risk and that Mr Profumo had been sharing Keeler as a mistress with the Russian naval attaché. Government decided against setting up a tribunal under the Act of 1921. Instead they appointed Lord Denning, Master of the Rolls to hold the inquiry. This task he performed with conspicuous success. In spite of the many serious defects in the proceedings, Lord Denning’s report was generally accepted by the public because of his rare qualities and high reputation. However, in 1966 the Royal Commission on Tribunals of Inquiry observed: “We recommend that no Government in the future should ever in any circumstances whatsoever setup a tribunal adopted in the Profumo case to investigate any matter causing nationwide public concern.”

In the British Act there is provision for the publication of the Report.

In India the enactments are: the Commissions of Inquiry Act 1952 and the Commissions of Inquiry (Amendment) Act 1971. The Acts provide for publication of the Reports of the Commissions. A number of commissions were constituted in India to go into the misconduct of ministers. It is unnecessary to refer to them.

In the Fundamental Rights Case (AIR 1973 SC 1461), Shelat, Hagde and Grower, Judges of the Supreme Court, gave judgments against the government. On or about April 25, 1973, the three judges were superseded and Justice Ray was appointed Chief Justice of India. The Bar Associations all over India condemned the supersession.

On or about June 25, 1975, Proclamation of Emergency was issued by president of India on the advice of Prime Minister Indira Gandhi. Thereafter, fundamental rights were suspended. Large numbers of persons were detained. Petitions were filed in the High Court for their release. Some High Courts accepted the petitions, others rejected them. An appeal was filed before the Supreme Court by Union of India, which was heard by a bench of five Judges: A N Ray CJ, H R Khanna, M H Baig, Y V Chandrachud, P N Bhagavati, J J {(AIR 1976 SC 1207) ADM Jabulpur vs Shukla}. Four Judges held that in view of the Presidential order, no person has any locus standi to move any writ petition for habeas corpus or any other writ to challenge the legality of an order of detention. Khanna, J, disagreed and held that the law of preventive detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms that we all cherish. On June 28, 1977, Mr M H Baig was appointed Chief Justice of India superseding Khanna, J, who was the senior most judge on the retirement of Justice Ray. The Bar of India condemned the action unanimously. The New York Times upheld the stand of Khanna, J, and suggested the Indians should erect a monument in his honour.

During the emergency, amendments to the constitution, election laws and other statutes were made. It is claimed that Indira Gandhi was so apprehensive of the rapid growth of popular agitation against corruption, abuse of power and maladministration that she invoked emergencies. About 110,806 persons were detained and tortured without trial under the draconian laws and practices of the emergency period.

In the 1977 general elections, Mrs Gandhi was defeated. The Janata government headed by Morarji Desai came to power. Government appointed the Commission of Inquiry with Justice J C Shah, former Chief Justice of India as its chairman, to inquire into the specific instances of subversions of Fundamental Rights and Rule of Law. The Shah Commission submitted its report in August 1978 after going through 46,000 complaints and holding 100 sittings.

In the general elections held in January 1980, Mrs Gandhi secured a comfortable majority to be sworn in as prime minister. When she returned to power she withdrew the Shah Report from circulation and destroyed its copies. Not a single copy was available in India. Eventually a copy of the report was traced and published by Aazhi publishers of Tamil Nadu in 2010 under the heading Shah Commission Report Lost and Regained (December 2010).

In 1948, the Chief Minister of Sindh Mr M A Khoro was dismissed. An ordinance was promulgated by the government of Sindh, establishing a tribunal consisting of Sir Abdul Rashid, Chief Justice Lahore High Court and Justice Shahabuddin, Senior Judge of the Dacca High Court to go into the allegations of the chief minister’s misconduct. After an elaborate inquiry, the tribunal submitted its report.

In 1953 a Court of Inquiry was established with Chief Justice M Munir and Justice Kayani to hold an inquiry into the situation that arose because of Qadiani riots. Among others Maulana Maududi, Attaullah Shah Bukhari and Mulana Shabbir Ahmed appeared as witnesses. The Report of the Court of Inquiry was comprehensive and erudite.

In 1960 a high powered Constitution Commission was formed, headed by Justice Shahabuddin, former Chief Justice of Pakistan to go into the working of the constitutional setups in Pakistan. The commission after an elaborate inquiry submitted its report.

(To be continued)

The writer is a Senior Advocate