State
of Bihar Vs. Lal Krishna Advani & Ors
[2003] Insc 453 (16
September 2003)
Brijesh
Kumar & Arun Kumar 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 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 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
:
"…..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 media…." Paragraph 63 is also quoted, which reads as under
:
"…..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"….. "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
followed….".
Yet
another part of the Report in paragraph 625 reads as under :
"……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
ideology…." (v) "….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 Hindu…."(vi) In the same part of
the Report paragraph 626 reads as under :
"…..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 India….." 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
inoperative and no action can be taken on the basis thereof.
The
High Court, while referring to a decision Reported in 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 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 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.
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, 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 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 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.
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.
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