May 31, 2020
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A Slur On The Judiciary

Judges unanimously condemn the rejection of the Srikrishna report by the Sena government

A Slur On The Judiciary
"It is clear from the general scheme of the Act that a Commission of Inquiry is a purely fact-finding body which has no power to pronounce a binding or definitive judgment. It has to collect facts through the evidence laid before it and to submit its report which the appointing authority may or may not accept..." Sir Cyril Salmon, Lord Justice of Appeal in a lecture on 'Tribunals of Inquiry'

THE law was on its side—as the Shiv Sena-led Maharashtra government knew when it summarily rejected Justice B.N. Srikrishna's findings on the 1992-93 Bombay riots. But as the controversy deepened, it became obvious the country's legal opinion was not. In the midst of the political crossfire that followed the tabling of the report, the nation's legal community is united in a debate on the relevance of such inquiry commissions.
The mood in judicial circles has touched a new low given the blatant politicisation of commissions of inquiry—as displayed in the fate of the Jain Commission of Inquiry and the Srikrishna Commission which has provoked the Congress to demand the dismissal of Manohar Joshi's government in Maharashtra. The controversy stems not only from the rejection of the report, but also from the manner in which the exercise was conducted. Says Justice N.D. Venkatesh, former judge of the Karnataka High Court: "A report of a commission of inquiry can be rejected only when it reveals issues, which if made public, could have an impact on the law and order situation or affect the integrity of the nation.... The government must provide reasons for rejecting the report".

The judicial uproar stems partly from a feeling of having been subverted by the executive. Says former Supreme Court chief justice P.N. Bhagwati: "This amounts to casting a slur on the judiciary as a whole.... It is improper for any government to impute a bias against any judicial official." Adds Justice M.F. Saldhana, a judge of the Karnataka High Court: "What is being overlooked is the fact that the Commission of Inquiry Act is a serious statute and the report of an inquiry commission is on par with the verdict of a high court judge. And that an action taken report (ATR) is identical to the execution of a decree or judgement."

Similar sentiments echo across the country, as a baffled judiciary unanimously raises its voice against the attitude of the Maharashtra government. Asks Justice Hosbet Suresh of the Bombay High Court: "Here is a judge who chose to hold a public inquiry and the evidence is public knowledge. So can the government reject the judge's findings when they are in consonance with the publicly known evidence?" Agrees Justice T.N. Vallinayagam: "As an impartial judge, Justice Srikrishna has expressed his views. If you are going to reject his views then why appoint him at all?"

Why, indeed? But the motivations behind setting up inquiry commissions are largely political. And given the fact that the commissions' findings are not binding on the government, such exercises often end in naught. Says former Bombay High Court judge, Justice Bakhtavar Lentin: "Commissions of inquiry are a waste of time and public money. They are intended to put unction on government conscience so that they can put off uncomfortable questions by saying: 'We have nothing to say and an inquiry commission has been appointed to look into the matter'. While it's up to the government to accept or reject the report, the grounds
for rejection are atrocious."
THE political fallout of these two reports has also sparked off a vociferous pressure lobby against judges taking up such assignments. Justice M.H. Kania of the Bombay High Court feels that in future no judge should accept such a task unless the government gives an assurance to implement the report's recommendations. Justice Jeevan Reddy, a former Supreme Court judge and presently chairman, Law Commission, is more categorical. "No sitting judge should accept any inquiry commission which has political intonations.

After the Jain Commission experience, the way it worked and the reports it made, I am impelled to say that even a retired judge should shun such commissions of inquiry which have political overtones," he says. "A sitting judge of the Supreme Court should be requested to head a commission only on a rare occasion for a matter of great public importance.... It is otherwise the work of an investigative body," adds former Chief Justice, J.S. Verma, referring to a letter he wrote to the Home Ministry on June 8, 1991, on the setting up of a commission of inquiry to probe the lapses in security provided to former prime minister Rajiv Gandhi.

The legal community is now building up pressure for amending the Commissions of Inquiry Act, 1952, which defines the role and scope of such bodies. Says Justice Vallinayagam: "The Act should be amended to make it binding on the government to accept the findings or the Act should be scrapped." As of now, it only "clothes the Commission with certain powers of a civil court but does not confer on it the status of a court.... The Commission is neither a quasi-judicial tribunal nor does it exercise powers of such a tribunal, nor are its proceedings quasi-judicial." But Justice Lentin is sceptical: "An amendment in the Commission of Inquiry Act will never come into play as it defeats the purpose for which commissions are set up—namely to buy time," he says.

 Is there a way out of this impasse? "Yes," says Supreme Court senior counsel, Ashok Panda: "A government ATR rejecting the recommendations of a Commission of Inquiry can be a subject matter of judicial review where the state government will have to defend its action." Congress MP Kapil Sibal also adds that the Central government can ask the CBI to investigate on the report provided the state government gives its clearance. Already action is under way; several civil liberties groups are working on filing PILs seeking the prosecution of Sena leaders and police officers indicted by the report. 
Pressure groups in Mumbai plan to file a PIL in the Supreme Court seeking a Constitutional amendment to give more teeth to such commissions. The Samajwadi Party too has filed a petition against the state of Maharashtra and the DGP, Maharashtra, on the grounds that the findings of a sitting judge have corroborated those of the 'people's verdict'.

In July 1993, Justice Hosbet Suresh and Justice S.M. Daud had probed the riots, under the chairmanship of Justice Krishna Iyer for the Indian People's Human Rights Tribunal. Thus, the findings are supported by two former judges as well.
Much of the resentment spills over from the fact that the Srikrishna Commission examined over 500 witnesses and sifted through over 2,000 affidavits and 3,000 exhibits, making it a report with strong evidentiary value.
Avers Sibal: "The Srikrishna report is a prima facie evidence on the crime committed". But would a strong political lobby force the state government to rethink its decision? Given the fact that the Verma Commission report on the Rajiv assassination was accepted after a Parliamentary uproar, there's hope for justice for the Bombay riots victims as well.


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