M J Antony: No more cat's paws

OUT OF COURT

The Supreme Court has restrained sitting judges from acting as commissions of enquiry.

Though the ruling politicians find the judiciary inconvenient most of the time, there are occasions when they need the judges on account of their reputation and credibility. When there is an embarrassing scam there is no better way to wriggle out of it than by appointing a commission of enquiry headed by a judge. This practice, once widely in use, has become rare now because of the resistance put up by the judiciary and some of the judgements of the Supreme Court.

In a recent instance, the Orissa government appointed a sitting judge of the high court to enquire not only into a sordid police firing, but also on larger issues like "industrialisation, displacement and rights of citizens, in particular tribals". The chief minister wrote to the chief justice of the high court that these were serious problems and, therefore, he should lend the services of a sitting judge to conduct the probe under the Commission of Enquiry Act. Initially, the chief justice was not willing to accede to the request of the chief minister, but later he suggested the name of a sitting judge to act as the commission. In order to save the judicial hours in these times of arrears, he was to sit as a commission only on Saturdays, Sundays and holidays.

The Supreme Court, meanwhile, had ordered in another case, University of Kerala vs Council of Principals, that under no circumstances, a sitting judge of any high court shall continue as a commission. Therefore, the Orissa government moved the Supreme Court to modify that order so that its commission could function. The Supreme Court declined to do so. This ruling is of great significance, as we take our breakfast these days while reading the day's scam. The Supreme Court judgement makes it clear that sitting judges are not available to pull chestnuts from political fires.

There are, however, some laws which permit sitting high court judges to take up tasks beyond their constitutional duties. Some of them have been identified by the Supreme Court in the judgement, T Fenn Walter vs Union of India, in 2002. Under Section 16 of the Consumer Protection Act, 1986, a person who is or has been a judge of a high court is eligible for being appointed as the president or member of the State Consumer Disputes Redressal Commission. The Administrative Tribunals Act, 1985; Railway Claims Tribunal Act, 1987; Special Courts (Trial of Offences relating to Transactions in Securities) Act, 1992; the National Commission for Backward Class Act, 1993, are some of the other enactments which contain similar provisions where the chairman, member or the president shall be either a sitting or a retired judge of a high court.

In view of these provisions, the Supreme Court ruled that "the appointment of a sitting judge as a commission has to be made only on rare occasions if it becomes necessary for the paramount national interest of the country." Therefore, ordinary cases of police firings or even "industrialisation and displacement" as in the Orissa case have been ruled out.

There are several reasons for the Supreme Court to limit the appointment of judges to enquiry commissions. For one thing, the findings of the commission are not binding upon the government. More often than not, a report which does not toe the line of the government is ignored or even assailed. Moreover, these commissions are invariably embroiled in political conflicts. The Shri Krishna Commission of Enquiry into the Mumbai riots following the Babri Masjid demolition is still waiting for "action taken" and the Supreme Court has been adjourning the case repeatedly. Often commissions carry on endlessly, defeating the principle of a quick and effective probe. The Liberhan Commission on Ayodhya has been going on for years.

Even before a commission sits, there is usually the inevitable controversy over the choice of the judge. His reputation, as well as that of the judiciary, is put in jeopardy by the debate in the media and the whisper campaigns. Then comes the wrangle over the terms of reference of the commission, which are decided by the government. After that there are bickerings over the procedure to be adopted, which is left to the commission.

Some commissions, like Thakkar-Natarajan, which was to look into the Fairfax scandal of the 1980s involving V P Singh, have conducted their inquiry behind closed doors, or without hearing the relevant parties and this has tarnished the image of such probes in public mind. In the end, there would be motivated leaks to the media as in the case of the Ranganath Commission into the Rajiv assassination and the Fairfax report.

These are sufficient reasons for the judges to keep out of the fray. The new judgement of the Supreme Court gives them a legal foundation for declining the government's invitation.