Full Judgment Text
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CASE NO.:
Appeal (civil) 1792 of 1997
PETITIONER:
State of Bihar
RESPONDENT:
Lal Krishna Advani & Ors.
DATE OF JUDGMENT: 16/09/2003
BENCH:
Brijesh Kumar & Arun Kumar
JUDGMENT:
JUDGMENT
BRIJESH KUMAR, J.
In this appeal, preferred by the State of Bihar, ultimately the
question which falls for consideration is the effect of non-compliance of
all time tested and ancient principle of natural justice. One cannot be
condemned unheard is one of the attributes of the principles of natural
justice, which operates even in absence of a written provision under the
law. Though in the case in hand there is such a provision which,
according to the appellant, was not necessary to be complied with, but the
High Court of Patna has held to the contrary. It relates to applicability of
Section 8B of the Commissions of Inquiry Act, 1952 (60 of 1952) (for
short ’the Act’).
In the year 1989 some communal riots took place in
Bhagalpur District, State of Bihar, resulting in many deaths and left some
others injured. Undoubtedly, it was a matter of concern and the State
Government decided to constitute a Commission of Inquiry under Section
3 of the Act, which reads as under :
"3. Appointment of Commission.- (1) The
appropriate Government, may, if it is of opinion
that it is necessary so to do, and shall, if a
resolution in this behalf is passed by [each House
of Parliament or, as the case may be, the
Legislature of the State,] by notification in the
Official Gazette, appoint a Commission of Inquiry
for the purpose of making an inquiry into any
definite matter of public importance and
performing such functions and within such time as
may be specified in the notification, and the
Commission so appointed shall make the Inquiry
and perform the functions accordingly:
xxx xxx xxx
(2) The Commission may consist of one or more
members appointed by the appropriate
Government, and where the Commission consists
of more than one member, one of them may be
appointed as the Chairman thereof.
Xxx xxx xxx
(4) The appropriate Government shall cause to be
laid before [each House of Parliament or, as the
case may be, the Legislature of the State,] the
Report if any, of the Commission on the inquiry
made by the Commission under sub-section (1)
together with a memorandum of the action taken
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thereon, within a period of six months of the
submission of the Report by the Commission to the
appropriate Government.]"
The terms of the Reference are as follows :
"a) to enquire into the facts and circumstances
leading to communal disturbances in the district of
Bhagalpur and adjacent areas on 24th October,
1989 and thereafter;
b) to enquire into whether these disturbances
were pre-planned and, if so, the elements
responsible for the same;
c) to enquire whether measures taken by the
District Administration to prevent and deal with
the said disturbances were timely and adequate,
and to fix responsibility for lapses if any, in this
regard with the said disturbances were timely and
adequate, and to fix responsibilities for lapses if
any, in this regard;
d) to recommend measures for preventing
recurrence of such disturbances;
e) to consider such other matter relating to
these communal disturbances and make such
recommendations as the Commission may think it
proper and necessary."
It was initially a single Member Commission and Mr.Justice
Ram Nandan Prasad was appointed as a sole Member of the Commission.
Subsequently, however, on 20.09.1993 two others were also notified as
Members of the Commission, namely, Mr.Justice Ram Chandra Prasad
Sinha and Mr.Justice S.Shansul Hasan. They are also retired Judges of the
High Court. The Commission seems to have been divided in its opinion;
one report was handed down by Justice Ram Nandan Prasad and the second
by the other two members, namely, Mr.Justice Ram Chandra Prasad Sinha
and Mr.Justice S.Shansul Hasan. The respondent no.1 Shri Lal Krishna
Advani and some others felt aggrieved by certain parts of the Report
submitted by the two members of the Commission. In this appeal we are
concerned with the remarks relating to the respondent no.1 alone. The
respondent no.1 felt that such remarks made in the Report submitted by the
two members of the Commission were uncalled for and were not necessary
to be made looking to the terms of the Reference and in any case the remarks
are such which impinge upon his reputation, as a public man. According to
him, his reputation and image was adversely affected in the eyes of the
people and such parts of the report were liable to be expunged, and the
appellant was required to be directed not to take any action in pursuance of
such observations against him, in the Report, more so, when the respondent
no.1 was not issued notice under Section 8B of the Act. If the notice had
been given it might have provided an opportunity to the respondent no.1 to
dispel whatever misconceptions were entertained and the findings recorded
in the Report. It would be appropriate to peruse the provision as contained
under Section 8B of the Act :
"8B. Persons likely to be prejudicially affected
to be heard.- If, at any stage of the inquiry, the
Commission,-
(a) considers it necessary to inquire into the
conduct of any persons or
(b) is of opinion that the reputation of any
person is likely to be prejudicially affected
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by the inquiry,
the Commission shall give to that person a
reasonable opportunity of being heard in the
inquiry and to produce evidence in his defence:
Provided that nothing in this section shall
apply where the credit of a witness is being
impeached."
One of the paragraphs of the Report in which a reference to Mr.Advani
has been made as also quoted in the judgment of the High Court, reads as
follows :
"â\200¦..Thus Jansangh disappeared and became a part
of the Janta Party. Along with people like . . . . ..
Mr.Advani became Information and Broadcasting
Minister and Vajpaee the Minister of External
Affairs, while invidiously Mr.Advani spreading
the message of his cult through the official
mediaâ\200¦."
Paragraph 63 is also quoted, which reads as under :
"â\200¦..Mr.Advani really spilled the beans and
revealed the real intention of the BJP in his
statement Reported in the PANCHAJANYA and
copied by the ’Times of India’ dated January 30th,
1993"â\200¦.. "Speaking for ourself, were distressed to
read that statement not out of fear because our life
and our religion are both safe in this country but
because of an eminent national leader should resort
to threat of rioting unless the norms set by him are
followedâ\200¦.".
Yet another part of the Report in paragraph 625 reads as under :
"â\200¦â\200¦The demand by him that Muslim and
Christian should style themselves as Mohammadi
Hindu and Christian Hindu etc. is a proof of this
depraved an achronistion ideologyâ\200¦." (v) "â\200¦.One
became the protector of Islam by peddling the
slogan of "ISLAM IN DANGER" the other is
exactly doing the same thing by peddling the
concept of protecting the Hinduâ\200¦."(vi)
In the same part of the Report paragraph 626 reads as under :
"â\200¦..The Islam which Mr.Jinna and the Muslim
League tried to save led to the chaotic condition in
Pakistan. Hinduism or Sanatan Dharma which
Mr.Advani is trying to save is creating the same
chaotic condition in Indiaâ\200¦.."
The case of the respondent no.1 has been that such findings and
observations as recorded by the two member Report of the Inquiry
Commission objectionably painted him in the minds of the people
affecting his reputation and bringing down his image in the public.
The High Court, in our view, has been rightly cautious in
observing that it was not concerned about the merit on the question of
appointment or the recommendations of the Commission but it confined
its inquiry to the parts of the Report which, according to the respondent
no.1, were objectionable and it was necessary that he was allowed an
opportunity before making any comment on his alleged conduct. The
High Court, after elaborate discussion on the point involved, partly
allowed the writ petition, ordering that such parts of the report shall be
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inoperative and no action can be taken on the basis thereof.
The High Court, while referring to a decision Reported in
AIR 1967 SC p. 122, The State of Jammu and Kashmir & Ors. Vs.
Bakshi Gulam Mohammad & Anr., observed that an authority who
takes a decision, which may have civil consequences and affects right of
a person, the principle of natural justice would at once come into play.
Reputation of an individual is an important part of one’s life. The High
Court then quoted a passage from a decision of this Court reported in
AIR 1989 SC p.714 Smt.Kiran Bedi and Jinder Singh Vs. Committee
of Inquiry & Anr., which passage contains the observations from an
American decision in D.F.Marion V. Minnie Davis, 55 American LR
171, reads as follows :
"The right to enjoyment of a private reputation,
unassailed by malicious slander is of ancient
origin, and is necessary to human society. A good
reputation is an element of personal security and is
protected by the Constitution equally with the right
to the enjoyment of life, liberty and property."
Some decisions, to which our attention has been drawn by Shri Harish
N.Salve, learned senior counsel appearing for the respondent no.1, may
be referred. 1983 (1) SCC p.124, Board of Trustees of the Port of
Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors.,
wherein it was observed that right to reputation is a facet of right to life
of a citizen under Article 21 of the Constitution. He has also referred to
the International Covenant on Civil and Political Rights, 1965 (ICCPR),
recognizing right to have opinions and the right of freedom of expression
subject to the right of reputation of others. The Covenant provides :
"1. Everyone shall have the right to hold opinions
without interference.
2. Everyone shall have the right to freedom of
expression; this right shall include freedom to
seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through
any other media of his choice.
3. The exercise of the rights provided for in
paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only
be such as are provided by law and are necessary;
(a) For respect of the rights or reputations of
others;
(b) For the protection of national security or of
public order (ordre public), or of public
health or morals."
It is thus amply clear that one is entitled to have and preserve, one’s
reputation and one also has a right to protect it. In case any authority, in
discharge of its duties fastened upon it under the law, traverses into the
realm of personal reputation adversely affecting him, must provide a
chance to him to have his say in the matter. In such circumstances right
of an individual to have the safeguard of principles of natural justice
before being adversely commented upon by a Commission of Inquiry is
statutorily recognised and violation of the same will have to bear the
scrutiny of judicial review. A reference may be made to [1984] A.C.
808, Peter Thomas Mahon Vs Air New Zealand Ltd & Ors.
The provision as contained under Section 8B of the Act
quoted above, was brought into the statute book by Amending Act 79 of
1971.
It may be noticed that the amendment was brought about,
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about 20 years after passing of the main Act itself. The experience
during past two decades must have made the Legislature to realize that it
would but be necessary to notice a person whose conduct the
Commission considers it necessary to inquire into during the course of
the inquiry or whose reputation is likely to be prejudicially affected by
the inquiry. It is further provided that such a person would have a
reasonable opportunity of being heard and to adduce evidence in his
defence. Thus the principle of natural justice was got inducted in the
shape of statutory provision. It is thus incumbent upon the Commission
to give an opportunity to a person, before any comment is made or
opinion is expressed which is likely to prejudicially affect that person.
Needless to emphasise that failure to comply with principles of natural
justice renders the action non-est as well as the consequences thereof.
Shri Dinesh Dwivedi, learned counsel appearing for the
appellant submits that since no action has been taken against the
respondent no.1 so far, in pursuance of the report of the Inquiry
Commission there was no occasion for him to move the Court in the
matter. It was not the appropriate stage to raise any grievance by filing a
petition challenging certain observations made by the Commission of
Inquiry. The petition was thus premature. We feel that it may not be
necessary for a person to wait till certain action is initiated by the
Government considering the report of the Inquiry Commission where the
observations made by the Commission are such which militate against
the reputation of a person and particularly without giving any chance to
such a person to explain his conduct. It would be open for him to move
the Court for deletion of such remarks made against him violating the
provisions of Section 8B of the Act.
It is then submitted by Shri Dwivedi that the Commission
was appointed to inquire as to whether the riots "were pre-planned and, if
so, the elements responsible for the same". The Commission was also
required to recommend measures for preventing such recurrences.
Therefore, the terms of the Reference were quite wide and the anxiety of
the Government was only to identify the elements behind such
disturbances and to take sufficient measure to prevent recurrence in
future. The Commission was not inquiring into the conduct of the
respondent no.1 in particular. These were some general observations
touching the matter under reference to the Commission. In this
connection, relying upon a decision reported in 1977(4) SCC p.608,
State of Karnataka vs. Union of India & Anr., a seven Judge bench
judgment, referred to the observations made in paragraph 77 to say that
the scope of such inquiries is wide enough to cover anything reasonably
related to the matter under inquiry. It is further submitted in reference to
observations made in paragraphs 184 and 186 of the aforesaid decision
that the function of the Commission is purely fact-finding and its
pronouncement is neither binding nor a definitive judgment. The
Commission is required to submit its report, which may or may not be
accepted by the appointing authority. It is further submitted that the
stage for any grievance arrives when in consideration of the report the
authority decides to take any action not otherwise. The Commission has
no power of adjudication in the sense of passing an order which can be
enforced. A reference has also been made to a case reported in AIR 1956
SC page 66, Brijnandan Sinha Vs. Jyoti Narain, a Division Bench
Judgment, to indicate that report made by the Commissioner under the
Public Servants (Inquiries) Act (37 of 1850) is merely expression of his
opinion and it lacks both finality and authoritativeness. Learned Counsel
has then referred to 1959 SCR page 279, Shri Ram Krishna Dalmia Vs.
Shri Justice S.R.Tendolkar & Ors., a Constitution Bench Judgement, to
submit that the recommendations of Commission of Inquiry are not
enforceable proprio vigore. It is not an adjudication. It is merely a
recommendation of the Commission. On the basis of the decisions
referred to above, much stress has been given on the point that this was
not the stage for respondent no.1 to have approached the Court raising
any grievance in respect of some observations made here and there while
inquiring into the Bhagalpur communal riots, its reasons and to
recommend measures to check such recurrences in future.
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We have already observed that had it been only a question of
any adverse action being taken against the person against whom some
adverse finding has been recorded, the contention of the learned counsel
for the appellant may perhaps would have been entertainable. The
government actually takes action or it does not or the fact that the report
is yet to be considered from that angle, cannot be a reason to submit that
it won’t be appropriate stage to approach the Court. There may be
occasions where after consideration of report the government may not
decide to take any action against the person concerned yet the
observation and remarks may be such which may play upon the
reputation of the person concerned and this aspect of the matter has been
fully taken care of under clause (b) of Section 8B of the Act. It is not,
therefore, necessary that one must wait till a decision is taken by the
government to take action against the person after consideration of the
report. We have already dealt with the point about the right to have and
protect one’s reputation. We, therefore, find no force in the submission
that the respondent no.1 had approached the Court at pre-mature stage.
No other point has been urged on behalf of the appellant. In our view, the
judgment of the High Court calls for no interference.
In view of the discussion held above, the appeal is
dismissed. There will, however, be no order as to costs.