KOCHI: The appointment of a judicial commission under the Commission of Inquiry Act 1956 has proved to be the most convenient tool used by the Centre and State Government to wriggle out from a tricky political situation, when confronted by charges of corruption and failure to take steps to prevent ethnic violence, disaster, accidents and many other issues of public importance. The very purpose of such commissions has been increasingly under scrutiny as governments have seldom bothered to implement remedial measures to prevent
the recurrence of such incidents. Exasperated by charade of the judicial probe reports gathering dust, two former judges of the Supreme Court had observed that commissions after commissions were appointed, knowing well that nothing would come out of them.
Justices Arijit Pasayat and SH Kapadia observed in November 2006 that “We hear that in some states there are big rooms only for keeping the final reports of such inquiry commissions and they are gathering dust there”. Kerala has a long history of such commissions submitting reports on wide-ranging issues such as corruption, communal violence, accidents and other issues of public importance. But, apart from the hue and cry at the time of the controversy in most cases, nobody is bothered about the fate of the report. The scant regard shown by governments towards probe reports had forced a former Chief Justice of the Supreme Court, Mr R C Lahoti, to state that judges should head judicial inquiry panel only after getting an undertaking from the governments that their recommendations would be implemented.
“Personally, I feel that no judge should accept the responsibility of heading commissions of inquiry unless it is guaranteed that their recommendations and findings will be implemented,' he said in 2005. The complaint about the governments using the commission of inquiry as a diversionary tactic is not of recent vintage. JB Monteiro, author of Corruption and Maladministration, has highlighted limitations of Commissions of Inquiry as early as in 1964 in The Economic Weekly in the background of the SR Das Commission Report against Sardar Pratap Singh Kairon, Chief Minister of Punjab. Three main points highlighted by Mr. Monteiro 53 years ago are still relevant.
The initiative in the appointment of a commission of inquiry rests entirely with the executive. It is not an unwarranted presumption that the executive will not institute an inquiry into its own actions—that is what most inquiries are—unless forced to do so by strong outside pressure.
2: It is open to the executive to define terms of reference of a commission in such a manner as to defeat, to the maximum extent possible, the purpose of the inquiry.
3: Under the Commissions of Inquiry Act the executive is not obliged to make public the findings of Inquiry Commissions. Nor are the findings binding on the executive. The executive's response may vary from outright rejection of an inquiry report to slack corrective action—taking advantage of the shortness of public memory. These observations were validated by lawyer AG Noorani in the late 70s while taking a closer look at the fate of the commission reports.
A report by a news agency in 2007 showed that governments at the Centre and various states had failed to take any action on recommendations of the 40-odd commissions of inquiry constituted to study major communal riots since independence. People familiar with such a dubious track record cannot be blamed if they question the sincerity of the state government in appointing a retired judge to unravel the so-called mystery behind the smutty talk affair, forcing minister AK Saseendran to submit his resignation.
Commissions toothless as findings not binding
The judicial commissions appointed by the governments are just fact-finding missions and the recommendations of a commission are not binding on the government, whereas a police investigation is crucial in bringing before law the real culprits in a crime. According to sources, the powers of a commission depend mainly on the terms of the reference prescribed by the government. In the case of a fair police investigation, the law will take its own course and the government will have little scope for interventions.
“If the government wants to weaken a commission, it could prescribe general terms of reference. If it wants to strengthen a commission, specific terms of reference could be prescribed,” said former DGP Siby Mathews. Judicial commissions are constituted as per the Commission of Inquiries Act of 1952. Over these years, Kerala has witnessed a series of judicial commissions. Though most of the commissions came out with startling recommendations, most of those remained on paper.
The Thomas P. Joseph commission that probed into the Marad violence is one instance. Though the commission had pointed out the chances of involvement of politicians in the larger conspiracy behind the violence and recommended a CBI probe, the UDF government that was in power when the commission gave its report sat on the recommendation. The High Court ordered a CBI probe into it last year.
Meanwhile, there are also instances of judicial commission recommendations becoming crucial in taking a corruption case to its logical conclusion. In the Idamalayar scam, a Vigilance probe was initiated as per the recommendations of the K. Sukumaran commission that probed into the scam. This led to the conviction of former minister R. Balakrishnan Pillai in the case. As per the Commission of Inquiries Act, the respective governments are bound to table a judicial commission report in the Assembly along with an action taken report (ATR) within six months of the commission submitting its report. But the ATRs are often ceremonial ones.
The Moideen Kunju Commission report on the death of 45 tourists in the Thekkady boat mishap of 2009 was another instance of the government attitude towards the commission reports. The commission submitted its report in 2011 and held the officials responsible for lapses in the purchase of boat. But the report is still gathering dust among many other commission reports. The state also recently witnessed the Justice Krishnan Nair Commission appointed by the previous UDF government to probe the Puttingal firework mishap relinquishing the mission as the government failed to provide any support despite repeated pleas. The government recently appointed the P.S. Gopinathan Commission to probe into the tragedy that claimed 110 lives.
Though the government initially prescribes time limits for commissions, it is often extended as per the commission’s request. The Justice Sivarajan Commission to probe the solar scam was constituted by the UDF government in October 2013 with a six-month term. But the commission’s term has been extended. As per the Act, the head of a commission need not be a serving or retired judicial officer. A person who is an expert in a field could be appointed as a commission to probe into a matter pertaining to that field....