w w w . L a w y e r S e r v i c e s . i n



Indira Gandhi & Another v/s J.C. Shah, Commission of Inquiry, Patiala House, New Delhi

    Cr. M. (M) Nos. 449, 539, 540 of 78

    Decided On, 20 December 1979

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE T.P.S. CHAWLA

    For the Petitioners: Madan Bhatia, Sushil Kumar, Advocates. For the Respondent: Frank Anthony, Madan Bhatia, D.R. Sethi, Sushil Kumar, K.K. Venugopal, Additional Solicitor General, R.P. Bhatt, K.N. Kataria, S. Vaidyanathan, V.S. Rajawat, Advocates.



Judgment Text

On 25th June 1975 the President issued a proclamation declaring that ‘a grave emergency exists whereby the security of India is threatened by internal disturbances’. The proclamation was issued under Article 352 of the Constitution. At that time Mrs. Gandhi was the Prime Minister. One of the Ministers in her Cabinet was Mr. Pranab Mukherjee. He was the Minister of State in charge of the Department of Revenue and Banking.

In March 1977 a general election was held. Mrs. Gandhi and the Congress party, of which she was the leader, were defeated at the polls. A new party, known as the Janata Party, obtained the majority in the House of the People and formed the Government. The Proclamation of Emergency was revoked on 21st March 1977.

Soon after its formation, the new Government set up a Commission to inquire into ‘excesses, malpractices and misdeeds during the Emergency or in the days immediately proceeding’ its proclamation. The notification appointing the Commission and defining its ‘terms of reference’ is dated 28th May 1977. It was a one-man Commission and the ‘Chairman’ was ‘Shri J.C. Shah, retired Chief Justice of the Supreme Court of India’. It has come to be known as the ‘Shah Commission’. I shall use the terms ‘Commission’ and ‘Chairman’ as synonymous depending on which is appropriate to the context.

In the course of its proceedings, the Commission summoned Mrs. Gandhi as a witness. As a result of certain events that occurred on 11th January 1978, the Commission ordered Mrs. Gandhi to be prosecuted under sections 178 and 179 of the Indian Penal Code. In broad terms, the offence under section 178 is committed when a person refuses to take the oath or make an affirmation. The offence under section 179 is committed when a person refuses to answer any question.

Mrs. Gandhi was summoned again to attend before the Commission on 19th January 1978. The upshot of the proceedings on that day was the same. She was again ordered to be prosecuted for offences under section 178 and 179 of the Indian Penal Code.

The complaint regarding the offences alleged to have been committed by Mrs. Gandhi on 11th January 1978 was forwarded to the Chief Metropolitan Magistrate, Delhi, on 20th January 1978. The complainant regarding the offences alleged to have been committed by her on 19th January 1978 was sent to him on 21st January 1978. Thus, there are two prosecutions pending against Mrs. Gandhi.

Mr. Pranab Mukherjee was also summoned by the Commission as a witness. On 12th January 1978, he, too, was ordered to be prosecuted for offences under section 178 and 179 of the Indian Penal Code. The complaint against him was sent to the Chief Metropolitan Magistrate, Delhi, on 20th January 1978.

Before the Magistrate, the prosecution produced one witness in each of the cases against Mrs. Gandhi and Mr. Mukherjee and closed its evidence. Mr. T.N. Pandey, an officer of the Commission, was the prosecution witness in the first case against Mrs. Gandhi. In the second case against her the witness called was Mr. V.U. Eradi, another officer of the Commission. He was also the prosecution witness in the case against Mr. Mukherjee.

Thereafter, Mrs. Gandhi applied to the Magistrate to summon Shri J.C. Shah, the complainant, as a witness, on the ground that his evidence was ‘essential to the just decision of the case’. This application was dismissed by the Magistrate on 22nd August 1978.

Both Mr. Mukherjee and Mrs. Gandhi then moved this court under section 482 of the Criminal Procedure Code 1973 to quash the proceedings pending against them in the court of the Magistrate. they have not yet entered upon their defence, though Mrs. Gandhi has been examined under section 313 of the Criminal Procedure Code. There are two petitions by Mrs. Gandhi, one in respect of each case pending against her. There is one petition by Mr. Mukherjee. By consent of counsel all these three petitions have been heard together, for they involve common questions. Besides, the proceedings by the Commission in relation to the two petitioners run side by side and they are best treated together. Even before the Magistrate the prosecutions against the petitioners have followed a nearly identical course. Therefore in this judgment. I will deal with all the three petitions conjointly.

One other matter needs to be mentioned before I proceed further. The complainant before the Magistrate was Shri J.C. Shah. Naturally, he was the only respondent impleaded in these petitions. However, after the petitions were admitted, the Union of India applied for leave to intervene in all of them. The applications by the Union were not opposed by the petitioners, and, accordingly, they were allowed without going into the merits, but, of course, without prejudice to the contentions of the parties in these or any other proceedings.

I should say at the outset that these cases raise questions of the highest importance. The points are both novel and unique. It is not surprising that most of them, if not all, are untouched by authority. And, if it should appear in this judgment that I have traversed unexplored areas of the law with less than becoming trepidation, that is because I have had much assistance from counsel on both sides; especially, Mr. Madan Bhatia whose extensive research has provided a great deal of light.

It is first necessary to narrate the proceedings before the Commission in some considerable detail. But, the proceedings are not comprehensive without an adequate background of the Commissions of Inquiry Act 1952. So, I will make a brief survey of its relevant provisions. Later, I will examine more closely those sections on which the argument was concentrated.

The Commissions of Inquiry Act 1952

The Preamble of the Act explains that its object is ‘to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers’. accordingly, section 3 empowers the appropriate Government to ‘appoint a Commission of Inquiry’. This power ‘may’ be exercised if the appropriate Government ‘is of opinion that it is necessary so to do’. But, ‘if a resolution in this behalf if passed by the House of the People or, as the case may be, the Legislative Assembly of the State’, the appropriate Government is bound to appoint a Commission of Inquiry. The word used is ‘shall’. However, what is of more significance to the present question is that a Commission can be appointed only ‘for the purpose of making an inquiry into any definite matter of public importance’. This imposes two requirements: the matter must be ‘definite’, and it must be of ‘public importance’.

Then, there are three sections which equip the Commission with various powers. By section 4 the Commission is vested with certain powers of a civil court. The most important is that of ‘summoning and enforcing the attendance of any person from any part of India and examining him on oath’: sub-clause (a). It can, also, require ‘the discovery and production of any document’: sub-clause (b). It can, also, require ‘the discovery and production of any document’: sub-clause (b). And, it can receive ‘evidence on affidavit’: sub-clause (c). Other powers can be conferred by the rules: sub-clause (f). The powers granted by section 4 vest in every Commission that is appointed.

In contrast, section 5 does not apply to any Commission unless a special direction to that effect is made by notification. The powers which conferred on the Shah Commission by para 5 of the notification of appointment. Section 5 is a long section comprising five sub-sections. It is sufficient just to indicate generally the powers which it gives. The Commission may ‘require’ any person to ‘furnish information’ respecting any ‘points or matters’ relevant to the inquiry, but subject to any claim of privilege: sub-section (2). The Commission may itself, or through a gazetted or higher officer, search any building or place and seize books of account and other documents: sub-section (3). The Commission can lodge complaints for certain offences under the Indian Penal Code committed in its view of presence, in particular, the officers under section 178 and 189, and for this purpose is deemed to be a civil court: sub-section (4).

Section 5A was inserted in the Act by amendment in 1971. It applies to all Commissions. This, too, is a long section comprising five sub-sections. In brief, the Commission is allowed to ‘utilize the service’ of ‘any officer or investigating agency’ of the Government for ‘the purpose of conducting any investigation pertaining to the inquiry’: sub-section (1). The officer or investigating agency may, subject to the direction and control of the Commission, summon and examine any person, require the discovery and production of any document, and requisition any public record from any office: sub-section (2). After investigation, the officer or agency must submit an ‘investigation report’ to the Commission: sub-section (4). The Commission must ‘satisfy’ itself about the correctness of the facts stated and the conclusions arrived at in the report, and for this purpose may make such inquiry, including the examination of the investigating officer, as it thinks fit: sub-section (5).

The Act then deals with the ‘Procedure to be followed by the Commission’. In section 8 it makes the laconic statement: ‘The Commission shall, subject to any rules that may be made in this behalf, have power to regulate its own procedure….’. It is the interaction of this section with sections 8B and 8C, and the meaning and effect of each of them, that has been the subject of great debate before me.

Sections 8B and 8C are so important that I had better quote them in full at once, along with their side-notes. They read as follows:

‘Persons likely to be prejudicially affected to be heard

B. If, at any stage of the inquiry, the Commission:-

(a) considers it necessary to inquiry into the conduct of any person; 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.

Right of cross-examination and representation by legal practitioner

8C. The appropriate Government, every person referred to in section 8B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission:-

(a) may cross-examine a witness other than a witness produced by it or him;

(b) may address the Commission; and

(c) may be represented before the Commission by a legal practitioner or, with the permission of the Commission, by any other person.’

Both these sections were inserted in the Act in 1971. Previously, the like provisions existed in the rules. But, in 1962 the Law Commission recommended in its Twenty-Fourth Report that these rules ‘should be incorporated in the Act itself’ as they ‘embody the fundamental principles of natural justice and safeguard the rights of individuals’. That is how the amendment of 1971 came to be made.

As regards the rules framed by the Central Government under section 12, I need to refer only to rule 5. It is entitled ‘Procedure of Inquiry’ and contains eight sub-rules. This rule again has been the subject of much discussion. Only the first five sub-rules are relevant. Since they are constantly referred to in the proceedings, I think it is best to quote them now, and they are set out below:-

‘5. (1) A Commission may sit in public or in private as it think fit:

Provided that a Commission shall sit in private on a request being made by the Central Government in that behalf.

(2) A Commission shall, as soon as may be after its appointment-

(a) issue a notice to every person, who in its opinion should be given an opportunity of being heard in the inquiry, to furnish to the Commission a statement relating to such matters as may be specified in the notice;

(b) issue a notification, to be published in such manner as it may deem fit, inviting all persons acquainted with the subject-matter of the inquiry to furnish to the Commission a statement relating to such matters as may be specified in the notification.

(3) Every statement furnished under clause (a) of sub-rule (2) shall be accompanied by an affidavit in support of the facts set out in statement sworn by the person furnishing the statement.

(4) Every person furnishing a statement under clause (a) of sub-rule (2) shall also furnish to the Commission along with the statement a list of the documents, if any, on which he proposes to rely and forward to the Commission, wherever practicable, the originals or true copies of such of the documents as may be in his possession or control and shall state the name and address of the person from whom the remaining documents may be obtained.

(5)(a) A Commission shall examine all statements furnished to it under clause (b) of sub-rule (2) and if, after such examination, the Commission considers it necessary to record evidence, it shall first record the evidence, if any, produced by the Central Government and may thereafter record evidence in such order as it may deem fit:-

(i) the evidence of any person who had furnished a statement under clause (a) of sub-rule (2) and whose evidence the Commission having regard to the statement, considers relevant for the purpose of the inquiry; and

(ii) the evidence of any other person whose evidence, in the opinion of the Commission, is relevant to the inquiry.’

The rest of sub-rule (5) does not arise for consideration in the present case, and has, therefore, been omitted.

The Transcript

I can now begin to relate the proceedings of the Shah Commission. The public hearings were hold at Patiala House, New Delhi. All the proceedings were recorded on tape. Every word that was uttered has been recorded. The entire proceedings filled up 234 tapes. These are now in the custody of the Ministry of Home Affairs.

Transcripts of certain portions of the proceedings have been exhibited before the Magistrate. Some portions have been reproduced in the complaints lodged against the petitioners or in the annexures thereto. Other portions of the transcript were filed by counsel for the Union (Mr. R.P. Bhatt) at an early stage of the hearing before me. He expressly stated that he had no objection to anything being read which formed part of the proceedings of the Commission or its orders. By course of the arguments. Some more documents, including yet other parts of the transcript, were filed by the parties, and it was agreed that they be taken on record and may be relied on for deciding these cases. I made a consent order to that effect on 28th February 1979. These are the sources, and, of course, the records of the Magistrate and, also, the proceedings here, on which I shall draw for recounting the proceedings of the Commission.

The nature of the points canvassed is such that it is necessary to quote copiously from the transcript. Unfortunately, the transcript is far from perfect. At times it is incoherent and almost unintelligible. That may be due to the deficiencies of the transcriber. Or, it could be that the recording itself if obscure. I made many requests to counsel for the Union to have the accuracy of the transcripts checked with the tapes. At one stage I was told that steps were being taken in that direction. But, ultimately, I was informed that for some reason or other it was not possible for the officers of the Union to correct the transcript or certify its accuracy. It was then stated that I should decide these cases on the basis of the transcripts as they existed on records. The transcripts have, of course, been signed by the Chairman, Shri J.C. Shah; but their accuracy leaves much to be desired.

However, there is no difficulty in following the substance and the draft of what was said in the course of the proceedings before the Commission. I only wish to say that if at times quotations from the transcript suffer from typographical or syntactical errors or tond to become incoherent, that is not the fault of my amanuensis, and the blame lies elsewhere.

Preliminary

As I said, the Commission was appointed by a notification dated 28th May 1977. Shortly afterwards, on 23rd June, 1977, the Commissioner issued a notification under rule 5(2)(b). By this notification ‘Members of the public’ were requested ‘to file complaints or statements regarding’ the ‘misuse of authority, excesses and malpractices’ committed during the Emergency or the period immediately preceeding it. Detailed instructions were given as to the manner of drawing the complaints and statements.

On 12th August 1977, the Commissioner published its ‘Regulations of Procedure’. These Regulations were framed by the Commission entirely on its own. No hearing was held, and no one was heard on the question as to what procedure the Commission should adopt.

A few of the Regulations are of significance because they portray the procedure which; avowedly, the Commission then intended to follow. In Regulation 14 it was stated that ‘The Commission will ordinarily call upon any person charged with committing or participating in the commission or otherwise being concerned in or privy to the commission of excesses and malpractices by an complainant in his complaint, statement or affidavit, to make his reply to such charge ……’. Regulation 15 intimated that ‘If the Commission decides to record oral evidence of any particular person, the procedure outlined in sub-clause (a) of clause (5) of Rule 5, Commissions of Inquiry (Central) Rules, 1972, shall be followed ……’. Regulation 16 gave the assurance that ‘Cross-examination of all witnesses, whose evidence is recorded orally on oath, will be allowed to all parties and persons indicated in section 8C of the Act’. And, Regulation 20 explained that ‘Although the technical provisions of the Evidence Act will not govern or restrict the recording of evidence before the Commission, the fundamental principles of natural justice underlying the primary provisions of the Evidence Act shall be followed as a guide’. I think it is right to say that the procedure laid down in the Regulations was quite in accord with the Act.

The First ‘Invitation’ to Mr. Pranab Mukherjee

On 20th September 1977, Mr. P.R. Rajagopal, the Secretary to the Commission, wrote a letter to Mr. Pranab Mukherjee. In this letter it was said:

'The Government of India have appointed a Commission under the Chairmanship of Justice J.C. Shah under the Commissions of Inquiry Act to enquire into the excesses that are alleged to have been committed during the emergency. The Commission has commenced looking into the complaints received from a number of persons. It appears from the perusal of the relevant records that you will be able to assist the Commission and furnish important information in relation to the inquiry in progress. Any information that you may give with reference to the following case, will be appreciated:

(i) Appointment of Shri T.R. Varadachary as Chairman of the State Bank of India.

May I, therefore, request you to remain present on 1-10-77 at 11 A.M. at the Patiala House, Purana Quila Marg, Off Tilak Marg, New Delhi and assist the Commission by giving such information as may be in your possession or power.

Yours sincerely,

Sd/-

(P.R. RAJAGOPAL).'

There are two observations to be made about this letter. Although a reference is made to ‘complaints’ it is not said that any complaint had been received by the Commission regarding the ‘Varadachary’ affair. Nor, secondly, was a copy of any complaint furnished to Mr. Mukherjee.

The Ruling of 29th September 1977: the two stages.

The first public hearing of the Commission was held on 29th September 1977. It commenced with a pronouncement by the Chairman. Probably, he was reading from a prepared draft. This is what he said:

‘The Commission has received complaints numbering more than 48,000 which are being processed and will be dealt with in the usual course either through the agencies of the States or other agencies or by investigations made through the Commission's Officers. Such of the complaints, as the Commission is competent to deal with, will then be dealt with.

2. The Commission proposes to commence hearings and hold public enquiries initially in regard to cases where the Central Government has supplied to cases where the Central Government has supplied at the request of the Commission the relevant files and on a perusal of those files it appears that prima facie cases of misuse of authority are disclosed.

3. It is necessary to explain the procedure which the Commission proposes, to follow in regard to the cases which the Commission desires to inquire into and especially those cases, inquiry into which is taken upon the basis of the Government files. The Commission will invite such of the Officers of the Government and others, who appear to be familiar with or concerned or involved in the Commission of the excesses to remain present before the Commission and to assist the Commission in the course of the inquiry, to explain matters which are disclosed by the Government files and other materials which have come to the knowledge of the Commission.

4. If on a consideration, in any matter, of the materials available from the files and from other sources, and the information conveyed by persons requested to appear before the Commission, it appears by applying the test of preponderance of probability that it is necessary to probe further into the matter, (it seems, the word 'or' has been omitted here by mistake) on the materials then available before the Commission the probabilities are reasonably evenly balanced, the Commission will proceed to hold an inquiry by recording evidence on specific matters. The evidence may then be taken by affidavits or on oath administered viva voce. In either case, then (probably the words should be ‘when’) an inquiry is made on such specific matters, opportunity will be given to cross-examine persons affected by any such statements made to the Commission on affidavits or viva voce. (There are some words missing in that sentence, but the sense is that persons affected will be given an opportunity to cross-examine). ‘If on such inquiry held on the specific mattes any person other than the person, who is invited to appear before the Commission, appears to be involved, or concerned as responsible for Commission of any exceeds, he will also be given an opportunity to appear before the Commission and make his statement and to take part in the proceedings of the Commission.

5. While making the investigation and the inquiry into specific matters, the Commission will proceed according to section 8A and 8B of the Commissions of Inquiry Act and Rules, 1972. (The sections intended to be referred to are obviously 8B and 8C, because section 8A clearly has no relevance.)

6. It may be observed that this is a fact finding inquiry. The Commission has no authority to record a conviction of any person. The approach of the Commission will, therefore, be to ascertain whether in the light of the records available, the information given by persons requested to appear before the Commission and other materials, and such further inquiries as the Commission may make, there appears a reasonable ground to reach a conclusion based on the preponderance of probability, the Commission will make either an independent report regarding the particular transactions or will include its finding in the final or an interim report, which the Commission may make.

7. The Commission desires that the proceedings should take place in an atmosphere which is completely free and unbiased. The Commission, therefore, expects that the members of the public, who are present in the inquiry room will maintain a non-partisan attitude and will not express their aprobation or disapproved in the Committee Hall or even in the precincts of the Patiala House. This is intended to ensure that those, who are invited to give information to the Commission, will be completely uninhibited in disclosing facts within their knowledge in an atmosphere of complete uninhibition. No photographs will be permitted to be taken in the Commissioner's Room there will be no televising of the proceedings nor any broadcasting of the proceedings.’

From paragraphs 1 and 2 of this pronouncement, it is perfectly plain that the Commission was not, at this stage, holding an inquiry into any complaint, although 48,000 had been received. The complaints were still being ‘processed’ and would be dealt with ‘in the usual course’ by various other agencies or the Commission's officers. The Commission itself would deal with such of them as were within its competence only thereafter: see para 1. The ‘cases’ regarding which ‘public enquiries’
had ‘initially’ been commenced were those in which, on a ‘perusal’ of the files supplied by the Central Government ‘at the request’ of the Commission, it appeared that ‘prima facie cases of misuse of authority’ were ‘disclosed’: see para 2. Thus, these were ‘cases’ in which (i) the Commission had reached a ‘prima facie’ conclusion, and (ii) decided to hold ‘public enquiries’ of its own motion and not on the basis of complaints. Both these deductions are important.

Paragraph 3, 4 and 5 of the pronouncement are extremely perplexing. Even the array of counsel for the Union have not been able to explain what exactly they mean. I will set down, as best I can, my understanding of them, and their effect.

According to paragraph 3 certain persons will be ‘invited’ to ‘assist’ in the course of the inquiry and ‘explain matters which are disclosed by the Government files and other materials which have come to the knowledge of the Commission’. The persons to be so invited are those ‘familiar with or concerned or involved in the commission of excesses’. That would certainly include the culprits. Inevitably, the procedure envisaged would involve an inquiry ‘into the conduct’ of such persons or, at any rate, their ‘reputation’ would be ‘likely to be prejudicially affected’. Therefore, section 8B would be immediately attracted, either through its clause (a) or (b) or both. Such persons would have to be given ‘a reasonable opportunity of being heard’. And, they would also become entitled to the rights under section 8C.

But paragraphs 4 and 5 postpone the application of sections 8B and 8C. This is achieved by dividing the inquiry into two stages. At the end of the first stage, the Commission is to evaluate the material before it, including the ‘information conveyed’ by persons ‘invited’ under paragraph 3. If the Commission finds on a ‘preponderance of probability that it is necessary to probe further into the matter or….. the probabilities are reasonably evenly balanced, the Commission will proceed to hold an inquiry by recording evidence on specific matters’. That is the second stage of the inquiry: the stage when the inquiry is into ‘specific matters’. By inference, one must presume that the first stage of the inquiry is concerned with ‘general’, as opposed to ‘specific’, matters. It is made clear in paragraphs 4 and 5 that the right to cross-examine will be given, and sections 8B and 8C will be applied, when the inquiry passes to the second stage. Thereby, implicitly, the right to cross-examine, and the operation of those two sections, at an early stage have been excluded.

This whole procedure is rather difficult to comprehend. At least I am not able to visualise how one first holds a ‘general’ and then a ‘specific’ inquiry into the same subject matter. I can find no parallel in any other legal situation, and none has been suggested.

The tests enunciated by the Commission for deciding whether ‘it is necessary to probe further into the matter’ are the traditional formulae of words used to indicate the standard of proof that must be reached in a civil case. In a civil case the party in whose favour there is a ‘preponderance of probability’, wins. If the evidence is ‘evenly balanced’, the party on whom the burden of proof lies, fails. But these standards of proof are applied to the evidence when, at the end of the case, the court delivers final judgment. The question of applying them at the beginning or in the middle of a proceeding an never arise. There would be no purpose in it. But the Commission adopts these ‘tests’ for deciding whether the inquiry should be pursued beyond the ‘general’ to the ‘specific’ stage. To me it seems that this is a complicated way of saying that the Commission will only ‘probe further’ if it thinks fit. No one disputes that the limits of the inquiry are within the Commission's discretion. But the inquiry is one continuous proceeding, and there are no two stages. All the Provision of the Act, including sections 8B and 8C, must, therefore, apply to it from the moment it starts.

Further, the procedure laid down contains internal contradictions. The premise in paragraph 2 for commencing the inquiry was that a ‘prima facie case of misuse of authority’. Appears. That surely is good enough reason for ‘probing’ into a ‘specific matter’, and no further justification is needed. By deferring the inquiry into ‘specific matters’ until certain other ‘tests’ are fulfilled, paragraph 4 is really undoing paragraph 2.

Again, paragraph 4 as worded gives the impression that evidence will be recorded only after the Commission has decided to inquire into specific matters. That is not correct. Evidence of the ‘invitees’ under paragraph 3 will have been recorded earlier, and that was in fact done. Thus, the procedure entails a duplication of evidence for no apparent reason. The witnesses at both stages of the inquiry would be substantially the same.

It may legitimately be asked why was it necessary for the Commission to evolve this strange procedure? There is no trace of it in the Regulations. Why could not the Commission inquire into ‘specific matters’ straightaway having already discovered ‘prima facie cases of misuse of authority, according to paragraph 2? I am unable to divine the reasons, but the critical effect of the procedure devised is patent. It delayed the application of sections 8B and 8C: in particular, the right to cross-examine. It also went against Regulation 16 which the Commission had itself framed.

The Ruling of 1st October 1977: the Oath of Secrecy

After making the pronouncement as to procedure, the Commission began to examine witnesses on oath. In response to the letter of request which he had received, Mr. Pranab Mukherjee appeared before the Commission on 1st October 1977. He was put on oath and questioned about the ‘Appointment of Shri T.R. Varadachary as Chairman of the State Bank of India’. At the outset, Mr. Mukherjee raised an objection. The transcript records what was said:

‘Name of the witness: Shri Pranab Kumar Mukherjee.

ON SOLEMN AFFIRMATION.

Examination in Chief by Mr. Justice J.C. Shah.

Chairman: You were the Minister of State at the relevant time when the question of appointment of successor of Mr. Talwar arose?

Witness: Yes, Sir, I was Minister of State in charge of the Department of Revenue and Banking.

Chairman: Who took the decision that Mr. Varadachary should succeed Mr. Talwar?

Witness: Sir, before I answer this question I would like to make a small submission, if you kindly permit me-Sir it is my understanding that I have been summoned this afternoon by this Commission to answer questions.

Chairman: Not even summoned. You were requested to come and assist the Commission and assist us.

Witness: I rectify it. I have been requested this afternoon by this Commission to answer questions which will have the effect of revealing matters in relation to the appointment of Shri T.R. Varadachary as Chairman of the State Bank of India. Before entering upon the office, I took the oath as prescribed in the Constitution which runs as follows……… I quote: 'I, etc. etc. do swear in the name of God/Solemnly affirm that I shall not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister'.

The binding nature of the oath continues to be so even after I ceased to be a Minister. The power conferred on the Commission by the Act cannot and does not include a power to qualify or destroy the provisions of the Constitution and the obligations imposed by the Constitution. While I am naturally anxious to co-operate in every possible way with a public inquiry of this kind, I can only answer those questions which do not involve matters which came under my consideration or to my knowledge as a Minister. It is, therefore, necessary that it may be authoritatively determined as to the scope of the oath and the matters which I am not at liberty to reveal. It will be appreciated that the issue is being raised not as a personal matter, but in the larger interests of functioning of the Parliamentary Democracy under the Constitution.

Chairman: Apart from my personal opinion, the matter was referred to the Ministry of Law and they have said that there is no question of any breach of the oath of office when he is called upon to disclose facts which are matters relating to the administration of the department. I will just read out the opinion. A copy of it was brought to me yesterday.

Witness: I will like to make a small submission

Chairman: I do not desire to rely on my own view. That is why the matter was referred to Law Ministry.

(The view of the Law Ministry was read out).

Chairman: All the records that we requested from the Govt. have been made available by the Govt. to the Commission so as to enable the Commission to hold an inquiry. But in my view-if I reverse it-in the view of the Law Ministry and to my view, there can be no question of claiming a privilege or seeking resort to the oath of office by saying that you are seeking to disclose any secret with regard to the disclosure of which or non-disclosure of which any sanction is not attached by any statutory provision. Would that satisfy you?

Witness: Sir, May I make a small submission? I am not claiming any privilege nor I am unwilling to provide any information which is relevant. But as to the nature of the subject, the information which I had, I had only in the capacity as a Minister. My point is whether by revealing that information, I am violating the oath of secrecy which I had to take while I was holding as a Minister. My second submission is if you direct me…… that is why I have sought your direction. If you direct me and order me, I am willing to place whatever information I have. I am not claiming any privilege but I would like to be protected that while making the information available to the Commission-which I had to know in the capacity as Minister-I am neither violating the oath of secrecy nor I am attracting the provisions of the Official Secrets Act.

Chairman: You can take it-and this is my ruling-that by giving this information before this Commission, you are not violating either the provisions of the Official Secrets Act or the oath of office.

Now you recommended the appointment of Mr. Varadachary as successor to Shri Talwar. What are the considerations you had in mind for recommending this appointment?’

It will be seen that the Commission categorically ruled that Mr. Mukherjee could not ‘resort to the oath of office’ because there was not statutory ‘sanction’ attached to the disclosure of ‘any secret’. When Mr. Mukherjee said: ‘the information which I had, I had only in the capacity of a Minister’, he was told that ‘by giving this information before this Commission’ he would not be violating the oath of office. (Although the Commission referred to the ‘oath of office’, it is obvious that what was meant was the ‘oath of secrecy’. That was the oath Mr. Mukherjee had quoted, and the discussion was all about. The two oaths are different. The Commission has not given any detailed reasons for its ruling. It has relied wholly on the opinion given by the Law Ministry, which, presumably, was obtained in anticipation of the objection. That opinion was read out in the course of the proceedings, but has not been reproduced in the transcript. However, a copy of the note prepared by the Law Ministry has been placed on record by counsel for the Union. I will advert to it at the appropriate time.

Having been given this ruling, Mr. Mukherjee answered all the questions that were then put to him. His examination extends over some 22 pages. On reading it one is left in no doubt that the Commission was inquiring into his ‘conduct’. There is also no doubt that he was asked questions about matters which must have been ‘brought under’ his ‘consideration’ or ‘become known’ to him as a Minister.

The First ‘Invitation’ to Mrs. Indira Gandhi

Mrs. Gandhi received a letter dated 25th October 1977 from the Commission requesting her to be present on 7th and 8th November 1977. This letter was couched in the same terms as the one Mr. Mukherjee had received. She was asked to ‘assist’ the Commission in relation to 5 cases which were specified. But there was one difference: she was furnished with ‘summaries’ of those 5 cases ‘alongwith the statements and depositions of witnesses which have been recorded by the Commission so far’.

By a letter dated 27th October 1977, Mrs. Gandhi asked for a change of dates as she was going to be on tour on the days she had been called by the Commission. Though it is not expressly so stated, the Commission must have acceded to this prayer, for by another letter dated 1st November 1977 Mrs. Gandhi was requested to be present on 21st and 23rd November, 1977.

The ‘Case Summaries’

The Commission was provided with a very large staff. Many officers were drafted from the Central Bureau of Investigation, and, also, other departments of Government. Their services were utilised to make investigations, as was permissible under section 5A of the Act.

Mr. T.N. Pandey, the prosecution witness against Mrs. Gandhi, has said:

‘After investigation was made, the result was put before Mr. Justice J.C. Shah for consideration and was not discussed with any senior officer…… The case summary was prepared after the case was approved by Justice Shah. It was the procedure laid down by the Commission. By the Commission I mean Justice Shah.’

Thus, the case summary was a statement of the result of an investigation.

It appears from the evidence, and is otherwise admitted, that when a particular ‘case’ was taken up by the Commission at its public hearings the proceedings commenced with the ‘presentation’ of the case summary. It was read out by the Investigating Officer. Like the rest of the proceedings of the Commission, the case summaries were widely reported by the media.

The Ruling of 27th October 1877: The Procedure and the oath again

Mr. V.C. Shukla was another Minister in Mrs. Gnadhi's Cabinet. He, too, was called to ‘assist’ the Shah Commission. On 27th October, 1977, he appeared and moved an application which caused the Commission to elucidate as follows:

‘Chairman: I believe there is some mis-conception as to my powers and the procedure followed by me. I have requested the assistance of persons acquainted with excesses in regard to which Commission is appointed to enquire and have requested them by letters to come and assist the Commission. I may refer to the information in the letter which has been issued to you. Mr. Shukla-you will find that it is request to come before the Commission and render such assistance as you may. There is no compulsion upon any one to come and assist the Commission.

There is no question also of interrogation. It is only a request for assistance. It is open to you to render or not the assistance.

The Commission is entitled to adopt such procedure as it is convenient and appropriate having regard to the circumstances of the case. In this case no inquiry is directed against any individual. Even the excesses are not specified in the Notification issued by the Government. Therefore it is necessary for me to evolve procedure appropriate to the effective discharge of my duties as a Commission appointed under the provisions of Section 3 of the Act.

It is, first, necessary for me to ascertain whether, in fact, some excess or excesses have been committed. The material have been collected. I have to ascertain whether there is any substance in the so called excesses, I have requested several persons, including you, Mr. Shukla to come before me and assist the Commission. Questions have been asked with a view to ascertain whether or not excesses have prima facie been committed and it is with that view the procedure which has been evolved by me in this case.

The letter which has been addressed to you, if I may read out, is:

(letter read out)

I had also on the first day, when I sat here in the Commission, said that the procedure to be followed will be consistent with the provisions of Sections 8A and 8B (he must have meant sections 8B and 8C) of the Act and the relevant rules. This inquiry or investigation if you may so call it, is of necessity of the nature of a preliminary nature in which the commission of excesses, also the involvement, if any, of any persons who may appear on the materials placed before me or on further inquiry made by me. That is why, Mr. Shukla, I have asked you and several other persons, to be present. If any one does not desire to remain present, that is a matter entirely of his own choice, leaving it to me to draw such inferences as are permissible and open to me, having regard to the judicial approach which I may make on the rest of the evidence.

I have already ruled that by requesting any Minister of the State to give information before this Commission, there is no breach of the oath of office involved. I have also obtained the advice of the Ministry of law in that behalf and that is consistent with the ruling that I have given. I do not see any reason why I should reconsider it. I propose to make it clear that I have no desire, at this stage or a later stage, to compel any person to disclose the information, if he does not desire to disclose the information. What inferences I may be able to draw, having regard to the rest of the evidence is a matter with which, at this stage, you would not be concerned. If the evidence discloses that there is a prima facie case made out of the commission of an excess and also the involvement of any individual or individuals, I will be justified in raising inferences having regard to the fact that not withstanding the request made the person or persons concerned did not choose to assist or give such information which they could give after the ruling given by me that no breach of the oath of office is involved. About the Constitutional validity of the provisions of the Commissions of Inquiry Act under special provisions of section 5, sub-section 2, I have no competence to go into. I am functioning under an order made by the President and I cannot go into the validity of the Statute under which I have been appointed. About the status of the counsel for the Union, there is some misunderstanding. I have not allowed counsel for the Union to participate in the proceedings. He has suggested sometimes certain questions which should be put. If in the exercise of my discretion having regard to the evidence tendered before me, it was permissible to ask the question I have put those questions. They have not been put by the counsel. At this stage I am only asking certain persons to come before me and give information within their knowledge. Our procedural laws and practices do not permit counsel to give evidence on behalf of party. But I have not prevented anyone till now from having a counsel present in the Commission room to protect the interests of his client, if such protection is necessary. But he would certainly not be able to participate in the proceedings. At a later stage, if he desires to address me, I will not prevent him from making such address on relevant matters.

Mr. Shukla: Sir, this is about the counsel. If any witness or any person who comes here to assist the Commission and furnishes such information as may be necessary, can he bring his counsel with him, who could also assist the Commission in the manner in which the Central Government Counsel assists the Commission?

Chairman: By all means, he would be entitled.

Mr. Shukla: Secondly, Sir, the point which requires your direction is about the statements made by the various people, for instance, today by former Secretary of the Ministry and former Additional Secretary of the Ministry, will made the submissions to you. This is on the basis of which I will have to clarify the position to you. As I have stated in my application before you, it would require through application of mind before I can give you useful and thorough information on those points which are raised. Therefore, it is my submission, that we should be given the time to go through these statements made on which many things would have to be clarified by the subsequent witnesses. If such time is allowed, it will facilitate collection of all the relevant information that the Commission desires.

Chairman: I would not be justified at this stage in making a blanket order; but if during the course of information which is sought to be elicited by me, you find it necessary or any witness finds necessary that he has to check up any document and obtain information before he can make an adequate statement, I will not prevent him from checking up the documents and I will give adequate facility.

Mr. Shukla: Thank you.’

In the exposition given by the Chairman, a number of points deserve to be noticed. He adheres to his previous ruling regarding the oath of secretary, and again invokes the ‘advice’ of the Ministry of Law. He finds no reason to reconsider his view, and indicates that if despite his ruling the persons invited do not ‘choose to assist or give such information which they could give’ he will be justified in ‘raising inferences’.

The statement of the Chairman that he has ‘not allowed counsel for the Union to participate in the proceedings’ does not concord with his description of what has been happening. Counsel for the Union has, at least, been suggesting questions to be put to the witness.

Regarding procedure, the observations of the Chairman are again bewildering. He first says that it is necessary for him ‘to ascertain whether, in fact, some excess or exesses have been committed’. But in the sentence after the next he converts this into ‘ascertain whether or not excesses have prima facie been committed’. It is, therefore, not clear whether he intends to reach a final or a provisional conclusion regarding the commission of excesses. In the next paragraph he says that the inquiry he is holding is ‘of a preliminary nature’. Yet, he goes on to say that the inquiry is into ‘the commission of excesses, also the involvement, if any, of any persons’. Then what is the point of holding an inquiry ‘of a preliminary nature? That he does mean a preliminary inquiry in the usual sense is corroborated by his reference to a ‘further inquiry’ at the end of the same sentence. However, he does not, on this occasion, expressly refer to any ‘stages’ in which the inquiry will be held. Although he repeats that ‘the procedure to be followed will be consistent with the provisions of sections 8A and 8B’, he does not specify at what stage they will apply. I confess I am unable to comprehend what precisely was the procedure that the Chairman had in mind.

The attitude of the Chairman, at that time, is expressed in his remark: ‘………. I have no desire, at this stage or a later stage, to compel any person to disclose the information, if he does not desire to disclose the information’. He does, of course, add that he may ‘draw such inferences as are permissible and open’ to him. But, no other consequence of non-appearance in an ‘invitee’ is mentioned. As will gradually appear, the approach of the Chairman underwent a radical change afterwards.

The Second and Third ‘Invitations’ to Mr. Pranab Mukherjee, and the Ruling of 14th November, 1977

Mr. Mukherjee, now received a letter dated 1st November 1977 requesting him to ‘assist’ the Commission in its inquiry into the ‘case’ of the ‘Detention of Smt. Gayatri Devi, ex-M.P. and Lt. Col. (Retd.) Bhawani Singh under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974’. For this purpose he was requested to be present on 14th November 1977.

He received another similar letter dated 8th November 1977 regarding the ‘case’ styled as ‘Harassment of Association of Voluntary Agencies for Rural Development and its office bearers’. The date on which he was requested to be present for this ‘case’ was 16th November 1977.

On 14th November 1977, Mr. Mukherjee came before the Commission. His examination opened as follows:

‘Chairman: Will you swear and state that you will speak the truth, the whole truth and nothing but the truth.

Witness: Sir, I swear will speak the truth nothing but the truth.

Chairman: Now your charge, you were Minister for State for Finance in the Ministry of Mrs. Gandhi. When were you made the Minister for Revenue, Intelligence or that particular department was included?

Witness: In fact, I was appointed Minister of State Finance in October’ 74 and then I was looking after two Departments; Revenue and Expenditure and a part of the Economics Affairs. Though officially, it was known as M.R.E. Minister of Revenue and Expenditure, but in fact, I was Minister of State under the control of Finance Minister and the work distribution in this case did not take place by the Cabinet or Prime Minister but by the Finance Minister himself between me and the Deputy Minister. Subsequently, sometimes in December '75, I was given independent charge and I was appointed Minister of Revenue and Banking. Now my Lord, before you put this question on this subject, I would like to make one submission, if you allow me.

Chairman: Yes.

Witness: Before the Shah Commission of Inquiry, New Delhi, respectfully showeth, I have received a letter addressed to me by the Secretary of the Commission dated November 1, 1977, requesting me to be present at the Patiala House, New Delhi, today the 14th November, 1977 at 9.30. Of course, now it is 2 O'clock. To assist this Commission by giving such information as may be in my possession………or power relating to the matter specified in the aforesaid letter. In this connection, I seek to invite the attention of this Hon'ble Commission to the following:-

(Shri Mukherjee read out his prepared statement)

** ** **

** ** **

(Shri Mukherjee concludes reading his statement and hands over a copy there of to the Commission).'

The statement which Mr. Mukherjee read covered 9 typed pages. He argued that section 8B imposed a ‘statutory duty’ on the Commission to decide, on the materials already before it, whether it was necessary to inquire into his conduct; and, also, to form an opinion whether his reputation was ‘likely to be prejudicially affected’ by the inquiry. He maintained that ‘unless and until’ these preliminary questions were decided, the Commission was ‘precluded from recording any evidence’ on the matter as it might ‘involve serious damage’ to his reputation. And, if the Commission answered either of those preliminary questions in the affirmative, he was entitled to ‘a reasonable opportunity of being heard’ which would include the right to cross-examine witnesses. Besides, the Central Government would have to lead its evidence first, and he would have the right ‘to produce evidence in defence’.

He, also, re-agitated the point about the oath of secrecy. The Ministry of Law, he said, had no ‘legal authority or power’ to rule upon his objection, and the Commission was ‘not entitled to receive any opinion from the Ministry’ in regard to it. In any case, the ‘opinion given by the Ministry of Law was wrong and baseless’. He asked the Commission to ‘consider these objections over again’ and give ‘an authoritative ruling.’

In conclusion, Mr. Mukherjee asked to be furnished with copies of the case summary and the statements recorded or affidavits received by the Commission of its officers. He wound up as follows:

‘………….. I submit that in fact there can be no manner of doubt that it is my conduct as the former Minister incharge of Revenue and Banking and concerned with the detention of Smt. Gayatri Devi, ex-MP that is in fact the subject matter of the enquiry and any adverse material of finding in this regard will cause irretrievable damage to my reputation. I shall, however, be able to fortify my submission in this regard if copies of the above documents are furnished to me.

The Commission has no power to by-pass mandatory legal procedure through soliciting of voluntary information from the various persons. Until and unless the aforesaid points are decided by the Commission, I express my inability to participate in the proceedings before the Commission. If it decides to hold the enquiry in accordance with the procedure contemplated by the Constitution and prescribed by the Commission of Inquiry Act and the rules framed thereunder, and summons me as a witness, I shall be happy to abide by its directive subject to the right of privilege that I may claim as aforesaid. I have referred to the 'procedure' contemplated by the Constitution as Article 21 of the Constitution guarantees to me my ‘personal liberty which includes my reputation. Article 14 further embodies the rule of law which excludes any organ of the State from taking any action against any citizen except in accordance with the procedure which is fair and just and is in consonance with the principles of natural justice. I cannot be subjected to an inquisitorial inquiry regarding my conduct with a serious threat to my reputation without being afforded full, fair and just opportunity of hearing. Thank you.’

Thereafter, the following dialogue ensued:

‘Chairman: Mr. Mukherjee, you have raised a number of questions, some of which were raised at an earlier stage. The opinion of the Law Ministry was read out not as something which was binding. I said at that time that that was my opinion and that was further supported by the view of the Law Ministry. I have had occasion to consider the matter over again and I do not see any reason to alter that view. So far as this enquiry is concerned, the function that this Commission is called upon to perform is somewhat peculiar. There is no person who is named as guilty of an excess. It is necessary, therefore, to ascertain or to divide the enquiry into two parts-(i) whether an excess has been committed, whether there is any person who has been named or unnamed, who is responsible for the commission of the excess. At this stage I have requested you to come and assist me in finding out as to whether any excess has been committed. I am not holding any enquiry into your conduct at this stage. If and when the question arises, you can rest assured that I will strictly follow the provisions laid down by the Commission of Inquiries Act-Section 8B and the rules framed in that behalf. But without ascertaining whether an excess has been committed, it would be necessary for me to call upon either all the officials of the Government of India and all the agencies to come and tell me as to whether or not, by reason of my enquiry it is likely that their reputation will suffer. That is something which is impossible for any one to do. Therefore, first, transactions have to be looked into. In this case the two persons have been placed under detention, under the COFEPOSA Act and it was necessary to ascertain first as to whether the detention of these two persons was contrary to law, was to carry out the objects and purposes of the law, or it was for some collateral purpose and it was an excess. After determining that question it will be necessary to ascertain as to who is responsible for that excess. Any attempt on my part to mix up the two enquiries would land me into an interminable enquiry into matters which I would not be able to dispose of. Therefore, in the first instance I have taken upon myself the duty of ascertaining whether or not there is anything to indicate that an excess has been committed and for that purpose I have requested you to come before me and assist me. There is no compulsion. If you do not desire to assist me it is not a matter with which I will be concerned. If, on the rest of the materials collected by me from officials and others who choose to assist me, it appears that there is prima facie evidence of commission of an excess by you or by some one else, I will certainly follow the provisions of Section 8B and the rules provided in that behalf; but at this stage it is not possible for me to do so.

Witness: My Lord, why I have raised this objection I would like to clarify. When I appeared before your Lordship on 1st October, I found even in the newspaper report there was distortion of the evidence which was rendered and I drew the attention of one of the officers of the Commission and he told me, perhaps rightly, that he has nothing to do with the newspaper report because newspapers are entitled to publish the report according to their choice and I have nothing to say on that. We are the political persons and we have a public life. What is coming today, if it comes in the correct perspective, I have nothing to say. But there is no agency here to control or to monitor it. For instance, I can tell you, Sir, 2nd October Times of India, Delhi Edition, brought out a big news items suggesting that Mr. K.R. Puri was appointed Governor, Reserve Bank of India, by Shri Subramanian not only at the instance of Smt. Indira Gandhi but at the instance of Pranab Mukherjee who was then the Minister of State under him. I sent a letter contradicting the statement. The newspaper did not publish it. This is just an instance, I don't want to bother you. But these things are happening days in and days out. Therefore it would be my submission to you either ascertaining the records or having evidence from the persons, whomsoever you may lime, you may arrive at your conclusion. But if, for instance, for particularly this case. My Lord, lot of things have been said which is not on the record. As I was listening to some of the evidence, lot of things have been said that some consultation took place, some meeting took place, but I went through the records of the Department and there is no mention of those things. The case summary there is no mention of those things. The case summary which has been read, it is a pretty lengthy one consisting of almost 10/12 pages. Therefore on the basis of that, I do not find that it is possible for me to assist the Commission out of the evidences rendered orally by the officers or out of the long case history, because the case history was not provided to me then I went through the records; it was just read and I had the opportunity of listening to it. Therefore, it would be my most respectful submission to you that I would like to have the opportunity of being represented by a counsel as is normally done in the case of a Commission of Inquiry and the evidence/witness should be ‘subjected to cross-examination and if you do not want to evolve the procedure by yourself-But most respectfully I would like to submit it would not be possible for me to cooperate with the Commission.

Chairman: It is entirely you privilege. If you do not desire to assist the Commission at this stage, I cannot compel you to do so. Hereafter if on the other materials which are available to me I come to a conclusion that there is some prima facie evidence which involves you in the Commission of an excess, then you will be given an opportunity such as is consistent with the provisions of the Act under section 8(B) and the rules. At this stage that is the only thing that I can do and obviously no counsel can give evidence. The evidence has to be given by a party.

Witness: True Sir, but the other witnesses are to be subjected to cross-examination. That is all right. Because that is one of the safeguards to protect the interests of the …….

Chairman: That stage will arise later. At that stage if there is prima facie evidence before me to indicate that you are involved in the commission of any excess, prima facie, then certainly it is my duty under the law to give you that opportunity.

Witness: Sir, I have made my submission.

Chairman: Do you desire to assist the Commission?

Witness: Sir, I am unable to.

Chairman: It is all right. That is your privilege.

Witness: Thank you.’

For the third time, now, the Chairman rules on the oath of secrecy the same way as before. And, for the third time he gives no reasons and merely concurs with the opinion of the Ministry of Law.

The theory of the two-stage inquiry is again revived. But, the basis of the division, as now re-stated, is altogether different. In the pronouncement of 29th September the distinction was between ‘general’ and ‘specific’ matters: the former constituting the first stage and the latter the second. According to the elucidation now given, the first part of the inquiry is for ascertaining ‘whether an excess has been committed; and, if that be found in the affirmative, the second part is to determine ‘who is responsible for the commission of the excess’.

I confess, I do not understand how it is possible in practice to segregate those two questions. By the very nature of things, the evidence which points to the commission of an excess will, also, tend to indicate ‘who is responsible’ for it. An offence and an offender must necessarily co-exist. One without the other is inconceivable. Thus, the so-called two questions are inseparable and trying to bifurcate them would be an exercise in futility. In all proceedings, investigative or judicial, the two questions are always gone into simultaneously. Evidence of the commission of an offence and the identify of the offender is collected, or produced and adjudged, in the course of one and the same proceeding. Whether it be an investigation, inquiry or trial, there are never two stages.

But, supposing the two questions can be isolated from each other, to what end? The ultimate object is to find the offender. So one may as well look for the offence and the offender both at once, rather than in stages. Any other course is bound to prolong and delay the inquiry without serving any purpose. Yet, strangely, it is the desire to expedite the inquiry that the Chairman advances as his reason for laying down the two-stage procedure. He says:

Any attempt on my part to mix up the two enquiries would land me into an interminable enquiry into matters which I would not be able to dispose of'. I should have thought, quite the contrary.

The other reason which he gives is contained in the observation: ‘But without ascertaining whether an excess has been committed, it would be necessary for me to call upon either all the officials of the Government of India and all the agencies to come and tell me as to whether or not, by reasons of my inquiry it is likely that their, reputation will suffer. That is something which is impossible for any one to do’. In other words, a single inquiry will raise the problem of applying section 8B to too many persons. That is no answer to the law. The application of the law is not dispensed with because the number of persons involved is large. Whatever be the number, the law has to prevail.

I need hardly emphasise that, again, the effect of the procedure outline by the Chairman is to postpone, to the second stage, the application of section 8B. But, whereas previously that result was not in any manner noticed, it is now impliedly stated to be the purpose in mind.

On this occasion, again, the Chairman re-affirms that 'There is not compulsion' on anyone to come and assist him. However, there is a vague foreboding that the attitude may change.

A number of times the Chairman repeats that when there is ‘prima facie evidence of commission of an excess’ by someone, he will follow the procedure contained in section 8B. this runs counter to the statement in paragraph 2 of the pronouncement of 29th September that public hearings had been commenced where ‘it appears that prima facie case of misuse of authority are disclosed’. If that was the fact, the stage for applying section 8B had, on his own showing, already been reached when the public hearings were commenced. Therefore, even according to his present ruling, to delay the application of that section any further was not justified.

The Ruling of 21st November 1977

Mrs. Gandhi was due to appear before the Commission on 21st November 1977. She did not herself appear before the Commission on that day but sent her counsel with a 17-page typed statement. The counsel handed over this document to the Commission, and it was then read out in full. In the first few pages. Mrs. Gandhi raised objections to the procedure which the Commission had adopted. This is what she said:

‘The proceedings before the Hon'ble Commission have been going on for quite sometime. Their entire thrust with banner heading reporting in newspapers, ratio and television has exposed me as the former Prime Minister, directly or indirectly, to a continuing process of political denigration and character assassination. The procedure adopted by the Hon'ble Commission is unknown to the Commissions of Inquiry Act and the rules framed thereunder. Newspaper reports indicate that investigation of every matter by the Hon'ble Commission has been preceded by the preparation of a case history. They have not, however, disclosed under what legal authority material for the preparation of case histories was collected and case histories prepared and under what provision of law the Hon'ble Commission took the same on its record. The contents of such case histories, the affidavits, if any, filed before the Hon'ble Commission, the statements of any persons recorded by police or other Government officials and submitted to the Hon'ble Commission, and at any rate the trend of various statements of witnesses who have appeared before the Hon'ble Commission would have clearly affirmed that my reputation was likely to be prejudicially affected in the proceedings before the Hon'ble Commission. In fact, it has already been irreparably damaged. Reputation is a part of my personal liberty under Article 21 of the Constitution and I cannot be deprived of the same, nor can I be exposed to any process of defamation except 'in accordance with the procedure established by law'. The Hon'ble Commission is precluded from prescribing any procedure of its choice in this contingency in view of the mandatory provisions of Article 21. That is why section 8B of the Commissions of Inquiry Act in terms provides that if the reputation of a person is likely to be prejudicially affected by the Inquiry, he must be given a reasonable opportunity of being heard.’

Then, after a brief survey of the rules framed under the Commissions of Inquiry Act, Mrs. Gandhi continued:

I respectfully submit that the proceedings by the Hon'ble Commission have disregarded the procedure contemplated by the Constitution and prescribed by the Act and the Rules. It is not merely a question of my reputation. The very terms of reference of the Hon'ble Commission shows that the inquiry before it is vitally concerned with my conduct as the former Prime Minister and Head of the Government. Press ‘reports of the proceedings further show that some witnesses have been confronted with previously prepared statements. Because of section 5A(3) it would appear that the agency employed were C.B.I. officers. Thus the Hon'ble Commission knew very well the utterly damaging character of the statements. The rehearsed statements before the Hon'ble Commission, reinforced by lading questions from the Hon'ble Commission and at times uninhibited expressions of conclusions, have been broadcast by the press, the radio and the television. Every person who has appeared before the Hon'ble Commission has been free to make reckless statements with impunity without fear of cross-examination by the concerned parties. There has been gruelling and longdrawn cross-examination by the Hon'ble Commission itself. Can there be any sembalance of a judicial atmosphere when the proceedings are continuously punctuated with cheers or jeers, sarcastic remarks and thinly veiled insults to witnesses? That this should not only be permitted but be given wide and repealed publicity clearly demonstrates the political motivation behind the appointment of the Hon'ble Commission. The entire proceedings, accompanied as they have been with loud blare of publicity, in disregard of the procedure contemplated by the Constitution and prescribed by law and in violation of the principles of natural justice, have caused irretrievable damage to me. They have turned the bar of the Hon'ble Commission into a legal platform for malicious political propaganda and have assumed the character of a trial by the press. At the same time, the relevant official records, which would have become public if the evidence of the Central Government had been recorded first, and would have helped present a balanced picture of the various events to the people, have not have disclosed.

On November 16, this Hon'ble Commission publicly announced that boycott provided no escape from inquiry and that the inquiry was being conducted in two parts. First, to determine whether any excess had been committed and secondly, to determined involvement of any person when the proceedings would be conducted in accordance with the Act and the Rules. This Hon'ble Commission should not carry any impression and it would be unfortunate if this Hon'ble Commission observes anything which creates any impression in the people's mind that there is any intention to avoid this inquiry. But if the announcement of the Hon'ble Commissioner is a belated public recognition that the present inquiry is not in accordance with the statutory provisions, the remedy that this Hon'ble Commission has devised to meet the situation, is worse than the disease. It is tantamount to saying: 'I shall first hold a trial to determine whether a murder has been committed or not even though you may be dammed in the process; I shall then hold a second trial to determine your rule in the murder and as the first trial has necessarily involved an inquiry into your connection with the murder, you say be damned twice over'. This Hon'ble Commission has no power to inflict any punishment. The only harm that the proceedings can indict on us is to damage my reputation. The second inquiry will be of little avail to me when my reputation has already been irretrievably damaged. Such a double inquiry is not warranted either by the Rules or by the terms of reference which clearly envisage single inquiry. If the present proceedings are meant to be only a preliminary investigation, such an inquiry cannot be conducted in public under full glare of publicity. Rule 2 clearly provides that for this purpose the Commission can only call for written statements supported by affidavits and cannot proceed to record evidence in public.

In the notification of August 12, promulgating its Regulations, this Hon'ble Commission had specifically followed this Rule by providing. 'The Commission may require persons who have complaints to make or have knowledge of facts relevant to matters under inquiry to file statements of fact or affidavits duly sworn before legally empowered authorities.' The regulations further laid down that 'the witnesses whose evidence is recorded by the Commission orally on oath will be allowed to be cross-examined by the concerned parties in accordance with the provisions of the Commissions of Inquiry Act, 1962'. By adopting the present procedure, I respectfully submit, this Hon'ble Commission has violated not only the Act and Rules, but it own regulations publicly promulgated by the said Notification. Obviously the Rules or the Regulations do not contemplate, and I cannot imagine that even this Hon'ble Commission meant to suggest, that oral evidence of witnesses will be recorded twice-once without cross-examination and second time subject to it. If that is so, any conclusion based by this Hon'ble Commission on the first deposition will be one-sided, illegal, contrary to the principles of natural justice and wholly ineffective, apart from the fact that the statements thus recorded will have done incalculable and irreparable harm to me in disregard harm to me in disregard of the protection which the Constitution and the Act provided to me.’

In the rest of her statement, Mrs. Gandhi defended her conduct in respect of the 5 cases regarding which she had been called to ‘assist’. She also contended that the terms of reference of the Commission were ‘one-sided and politically motivated’. The support this submission she referred to various events that had occurred before and after the Declaration of Emergency. I am not concerned with any of those matters, and do not, therefore, dwell on them. Mrs. Gandhi concluded her statement as follows:

‘In these circumstances, I feel that no useful purpose will be served my participation in the proceedings. If it decides, however, to hold the inquiry in accordance with law and in the course thereof, summons me as a witness, I shall abide by its directive.’

The Chairman responded by elaborating his reasons for the procedure which he had evolved. He said:

‘Chairman: I would not have thought it necessary to make a statement, but having regard to certain questions, which have been raised in the long statement, which has been filed, I propose to explain the procedure, especially the procedure which has been adopted by the Commission. I had occasion to say more than once that I have been appointed as the Commission for holding an enquiry under the Commissions of Inquiry Act to deal with a matter, to use the expression used by the Act, matter of, definite matter of public importance. The inquiry, to my knowledge, is a matter of public importance but of an unusual nature. A number of Commissions have been appointed under the Act of 1952, under which persons responsible for the acts done by them have been specifically named. This was, to my knowledge, the only Commission in which the persons responsible have not been named directly or indirectly. For that reasons, I thought it necessary that it is appropriate that a procedure should be devised so that I may not waste my time as well as the public time in issuing notices in the first instance against a number of persons who may or may not be concerned in the commission of excesses. Section 8 of the Act permits me to regulate my procedure in regard to the inquiry. Undoubtedly, it has to be subject to the Rules that may be made in this behalf. A Commission which was required to hold an inquiry in connection with excesses, which are set out, of course the nature of excesses set out, without naming the individuals concerned, either directly or indirectly, necessitated that the inquiry should be in two parts. That also I have made clean on more occasions than one and I have said that I must in the first instance ascertain whether there is an excess committed. For that purpose, the records of the Government were called for. In those cases where it came to the notice of the Commission, other evidence was also considered. They were shifted through the investigating agencies and thereafter when it appeared that there was some prima facie evidence of the Commission of an excess, a statement of the case was prepared and publicly read out. That was not with any intention or object of bringing anyone into disrepute but for the purpose of determining whether or not an excess had been committed. A number of persons have been examined, a number of transactions have also been examined a number of transactions have also been looked into. In those cases where I, prima facie, thought that even though there might be grounds for suspicion but no case prima facie of the Commission of an excess was made out, I have ruled out the presentation of such cases before the Commission. Where, however, there appeared to be prima facie evidence of the Commission of an excess, the cases were presented before the Commission with a view to ascertain whether there had been commission of an excess and, obviously, the commission of an excess necessitates inquiry into the involvement of some person or persons into the commission of acts or transactions, which may amount to excesses.

For that purpose, an open inquiry, which under the terms of section 8 I was entitled to make has been made. It may be that at this stage some persons may feel that they have something to say or without representation on their part, their reputation may be affected. I have, therefore, given them ample opportunity to come before me and explain their conduct, which may prima facie amount to an excess, but for which there is ample explanation forthcoming.

Some persons have come; many have come; some have kept themselves out of the Commission; some have come on some occasions and declined to come on other occasions. But that again, as I said, is a matter of no concern to me. If once I come to a conclusion that there is a prima facie evidence in regard to the commission of an excess examined through in the light of the refusal without adequate reason to appear before the Commission and explain their conduct, the second part of the inquiry will be held and according to Rule 5 and Section 8B, and the fullest opportunity will be given to all concerned to explain their conduct. Lest it may not be clear to persons who are here and to the public, I think, it necessary to invite attention to the provisions of Rule 5 which provide for the procedure of inquiry.

'(1) A Commission may sit in public or in private as it thinks fit:

Provided that a Commission shall sit in private on a request being made by the Central Government in that behalf.

(2) A Commission shall, as soon as may be after its appointment-

(a) issue a notice to every person, who in its opinion should be given an opportunity of being heard in the inquiry, to furnish to the Commission a statement relating to such matters as may be specified in the notice;

(b) issue a notification, to be published in such manner as it may deem fit, inviting all persons acquainted with the subject matter of the inquiry to furnish to the Commission a statement relating to such matters as may be specified in the notification.'

A notice under clause (b) of sub-section (2) has been issued. Notice under clause (a) could not be issued for the very simple reason that there must be on my part some prima facie satisfaction that there is some person who must be given an opportunity of being heard in the inquiry, and unless there is evidence before me that a person should be given an opportunity of being heard, I could not issue any notice. But notice under rule 5(2)(a) will be given to all persons, who appear to be involved in or otherwise concerned in the commission of an excess.

In this connection also it is pertinent to refer to the provisions of section 8B of the Act, which provides that:-

'If at any stage of the Inquiry', not 'at the commencement of the inquiry', but 'If at any stage of the inquiry', the Commission-

(a) considers it necessary to inquiry 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 reasonable opportunity of being heard in the inquiry and to produces evidence in his defence;’

Unless the person is identified as a person, whose conduct is being inquired into, or his reputation is likely to be affected by the inquiry, there could be no question of giving any notice under section 8B.

It is, therefore, after considerable thinking I had devised this procedure. If the procedure is, as stated, contrary to the provisions of the Constitution, it is not a matter on which I can express any opinion because I have been appointed to hold an enquiry and the regularity or otherwise of my procedure cannot be investigated by me. So far as a number of other questions which are sought to be raised; matters relating to the position of the Prime Minister, matters relating to the holding of; rather the issue of certain notifications are concerned, I do not propose to say anything. But one thing I propose to bring to the notice, I am only concerned with the declaration of emergency, if it amounts to an excess and not otherwise. If on consideration of the material before me, I am prima facie of the view that declaration of emergency could be regarded as an excess, an inquiry in open will be made. If, however, there is no such view formed by me, no such enquiry will be made. It is not that it is the declaration of emergency which will then be enquired into, but it will be declaration of emergency which will be enquired into as an excess prima facie appearing on the materials placed before me. A number of other things have been said. Some matters which may appear to be of the nature of political propaganda are matters with which I am not concerned. Whether the newspapers have published any matters which they should or should not have published is not a matter on which I can have any control nor on any matters published through the public media. I have also said on the first day when I sat here in this Commission Room that I expect the public who remain present to maintain the utmost decorum. The Commission will frown upon any attempt on the part of any person either to approve any statement made or to express disapproval of any statement made. An inquiry of this nature can only be made in an atmosphere of complete detachment and that must be maintained by the Commission as well as the officers and the public as well. Whenever, there has been any attempt made by persons to express any disapproval or even approval, I have to the best of my ability stopped it and made the utmost attempt to stop it. But these are something which happen spontaneously and there is no method by which you can prevent such expression of opinion. If, therefore, there has been such expression of opinion or expression of approval or disapproval, that is not the matter with which the Commission can be charged with having participated or been guilty of any irregularity. That is all that I propose to say.

It will be observed that the basis for the division of the inquiry into two stages is the same as that given, a week earlier, in the ruling of 14th November 1977. A significant statement made by the Chairman is that the procedure has been devised so as not to ‘waste’ time ‘in issuing notices in the first instance against a number of persons who may or may not be concerned in the commission of excesses’. Thus, now, it is expressly acknowledged that the specific purpose of the procedure is to defer section 8B. As to the saving of time, I have already made my comment and need not repeat it.

Another reason which the Chairman now adduces is that the terms of reference do not name any ‘persons responsible for the acts done’, and that necessitates the procedure he has ‘devised’. But at the end of the paragraph he admits that ‘obviously the commission of an excess necessitates inquiry into the involvement of some person or persons into the commission of acts or transactions, which may amount to excesses’. If I understand that correctly, he is saying precisely what I have said under the previous heading whilst dealing with the ruling of 14th November: the two questions cannot be separated. So, it makes not the slightest difference whether the persons alleged to be responsible are name or not. The inquiry into their responsibility will still have to be made. Which means, in effect, that the offender will still have to be found. Or, at any rate, it will have to be determined whether the persons named is the offender or not.

This ruling of the Chairman in again extremely difficult to grasp. He says, that the case summaries were prepared only ‘when it appeared that there was some prima facie evidence of the Commission of an excess’. The other ‘cases, he says, were ‘ruled out’. Then, surely, the purpose for which the first stage of the inquiry was designed was redundant. For, according to what he says, ‘prima facie evidence of the commission of an excess’ already existed before the case summary was composed. There is also a glaring contradiction. On the one hand the Chairman says that he cannot comply with section 8B ‘Unless the person is identified as a person, whose conduct is being inquired into, or his reputation is likely to be affected by the inquiry’: on the other, he says earlier, that he has even ‘at this stage’ given ‘ample opportunity’ to persons whose ‘reputation may be affected’ to come before him and ‘explain their conduct, which may prima facie amount to an excess’. Those two statements appear to be quite inconsistent. And, then, there is the further statement: ‘If once I come to a conclusion that there is a prima facie evidence in regard to the commission of an excess examined through in the light of the refusal without adequate reason to appear before the Commission and explain their conduct, the second part of the inquiry will be held and according to Rule 5 and Section 8B, and the fullest opportunity will be given to all concerned to explain their conduct’. But according to what he said a little earlier, that opportunity has already been given at the first stage, the confusion is more than I can unravel.

With regard to the Declaration of Emergency, the observations of the Chairman are equally baffling. He says: ‘I am only concerned with the declaration of emergency, if it amounts to an excess and not otherwise’. Explaining this further he says: ‘It is not that it is the declaration of emergency which will then be inquired into, but it will be declaration of emergency which will be enquired into as an excess prima facie appearing on the materials placed before me’. The word ‘excess’, as the Concise Oxford Dictionary shows, imports the concept of ‘exceeding’. In the present context it would mean ‘Overstepping of due limits’ of power. How can one inquire into the Declaration of Emergency ‘as an excess’ without inquiring into the Declaration of Emergency itself? How can one decide whether the limits have been crossed, without knowing what the thing is?

One other point remains to be mentioned. It is quite clear from what the Chairman has said that the case summaries are not an ‘investigation report’ as contemplated by section 5A(4) of the Commissions of Inquiry Act. According to that section the investigation officer must submit an ‘investigation report’ on his own. The Commission is then required by section 5(5) to satisfy itself about the ‘correctness’ of the report. But, here, according to the Chairman himself, the summary was prepared only after he was satisfied ‘that there was some prima facie evidence of the commission of an excess’. In the ‘cases’ in which he was not so satisfied, no such summary was prepared at all. This reverses the procedure prescribed in section 5A. Hence, whatever else it may be, a case summary was not an ‘investigation report’. It seems to have been more akin to an idictment. It was the mode in which a ‘case’ was ‘presented before the Commission’. The case summary was ‘prepared and publicity read out’. Perhaps, appropriately, the Chairman described it as ‘a statement of the case’.

The general tenor of the ruling is, also, noticeably different. Although the Chairman says that it is of ‘no concern’ to him whether persons come to assist the inquiry or not, he does not add that ‘There is no compulsion’. Nor does he give the assurance that there, will be none at ‘a later stage’.

The Second ‘Invitation’ to Mrs. Gandhi: the Ruling of 5th December, 1977

There days later, on 24th November 1977, the Commission sent another letter to Mrs. Gandhi. She was requested to come and ‘assist’ in the inquiry relating to the ‘following case’:

‘Imposition of Emergency.

Part I-Developments between 12th June 75 and 22nd June 75.

Part II-Developments between 22th June 75 and 25th June 75.

Part III-MISA detentions and other arrests on the night between 25th and 26th June 75.’

The letter was worded in the usual form adopted by the Commission. It requested Mrs. Gandhi to ‘remain present on 5th December to 10th December, 77’. But, at the end, there was an additional line: ‘Please confirm before 2nd December, 77 that you are coming’.

Mrs. Gandhi's reply is dated 2nd December 1977. It runs to 7 typed pages. She protested again about the procedure devised by the Commission. And, she contended that the Commission had no power to inquire into the Declaration of Emergency. These points are argued in her letter as follows:

‘By my representation of the 21st November, 1977 I had stated that the announcement made by the Hon'ble Commission on the 17th November regarding the enquiry being conducted in two parts was contrary to the Act and the rules as well as its terms of reference. Earlier, it had been reported in the Press that this Hon'ble Commission would start making interim reports from November/December onwards on matters concluded in the present proceedings. This was apparently in compliance with the terms of reference which provide, 'The Commission shall make interim reports on the conclusion of inquiry into any particular allegation or series of allegations'. The notification appointing the commission further provided that the commission would make inquiry into 'excesses, malpractices and misdeeds during the Emergency'. The types of excesses were also specified therein. The terms of reference, therefore, do not contemplate double inquiry and the proposed interim reports could not be meant to be preliminary in nature. It is only when objections to the procedure were raised by certain persons that this Hon'ble Commission for the first time announced that the inquiry would be conducted in two parts.

I had further submitted that the remedy which this Hon'ble Commission had devised to meet the situation caused by the objections to the procedure would in fact aggravate the damage which had already been done to my reputation.

I respectfully submit that the Hon'ble Commission has not answered my objections. Therefore no useful purpose will be served by repeating them.

In fact, that the declaration of Emergency, according to this Hon'ble Commission, might be an excess and therefore calls for an inquiry is a matter which does not fall within the purview of this Hon'ble Commission. The proclamation of Emergency by the President was a constitutional step. It was approved by the Cabinet and duly ratified by both Houses of Parliament in terms of Article 352(2) of the Constitution. After the ratification, the proclamation which was political in character, became an Act of Parliament. In the United States the exercise of political power by the President has been held to be beyond challenge. Chief Justice Marshal observed in Marbury v. Madison:

'By the Constitution of the United States the President is invested with certain important political powers in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience……. The subjects are political. They respect the nation, not individual rights, and being entrusted to the Executive, the decision of the Executive is conclusive.'

Under the Indian Constitution, on the other hand, the proclamation of Emergency has been made subject to ratification by Parliament.

No authority in this country, not excluding any commission appointed under the Commissions of Inquiry Act, can sit in judgment over such an Act of Parliament. For any political decisions, the Government under our Constitution is answerable only to Parliament. If this Hon'ble Commission arrogates to itself the power to determine that the declaration of Emergency was an excess, this Hon'ble Commission will not only be stultifying the Constitutional Scheme, but also establishing a precedent which will make serious inroad into Parliament supremacy with disastrous consequences to parliamentary freedom. Even the terms of reference of this Hon'ble Commission do not warrant such an inquiry. They are strictly confined to the determination of alleged excesses during the emergency or in the days immediately preceding it.’

Then, Mrs. Gandhi proceeds to justify the Declaration of Emergency by reference to the state of affairs that proceeded it. Thereafter, she continues:

‘In these circumstances, the Hon'ble Commission's predetermination of certain dates while circumscribing the scope of its inquiry, belies reality. It has been repeatedly proclaimed by members of the present Union Government that it was allegedly because of the Allahabad High Court Judgment of the 11th June, 1975, and the qualified stay given by the Supreme Court on 22nd of June that the Emergency was declared for personal reasons, namely to stultify the judgment by extra-legal means and to maintain my position as Prime Minister by extra-constitutional methods. I have to point out, with utmost respect, that the Commission appears to have projected the theory propagated by my political opponents.

By putting the inquiry beforehand into a predetermined chronological matrix the evidence would naturally proceed under the conditioning of this predetermined matrix, and this untested material will be systematically publicised to make it appear as proof. This, in my humble opinion, directly defeats the ends of justice.

The Commission, according to press reports, has had the benefit of the services of many investigating agencies. Apparently, large numbers of persons have already been examined on oath by these investigating agencies. Presumably, also, affidavits have been submitted to the Commission which have to do directly even with this predetermined chronological matrix from the 12th June, 1975 to the 26th June, 1975. No indication has been given in the Hon'ble Commission's letter of the 24th November nor has any statement been attached of the evidence which is already before the Commission.

I should like to make another submission to this Hon'ble Commission. So far it has been understood that neither the Prime Minister, the Home Minister nor any other functionary of the Government had the right or jurisdiction to holds parleys with such Commissions in regard to any matter pertaining to inquiries pending before them. However, on October 20th 1977 the present Union Home Minister announced at a press conference that he and the Home Secretary had met this Hon'ble Commission and had discussed matters relating to the scope of the inquiry. He said, 'you will be surprised to know that I and the Home Secretary had a talk with him (Mr. Justice Shah) more than two months ago'. There are also reports of meetings between the Prime Minister and the Hon'ble Commission. I respectfully submit that even though this Hon'ble Commission has been appointed by the Central Government, it is an independent statutory authority and is discharging quasi-judicial functions. Any consideration or determination of the scope of its terms of reference or any matters having any bearing on the enquiry falls solely within the prerogative of this Hon'ble Commission.

As I have already pointed out in my letter of the 21st November 1977 I am prepared to abide by the directives of the Hon'ble Commission (if it summons me as a witness in accordance with the Act and the Rules. However, no useful purpose will be served by my participation in the present proceedings and I regret my inability to appear before this Hon'ble Commission.

New Delhi,

December 2, 1977

Indira Gandhi.’

On 5th December 1977, the day on which Mrs. Gandhi had been requested to be present, the proceedings of the Commission began with a statement by the Chairman. He said:

‘Chairman: Before the proceedings of this morning are commenced, it is necessary to mention some matters of importance.

I understand from the newspapers that a letter addressed to the Commission has been received in the office. It was, however, delivered to the Press before the Commission had any occasion to consider it. The normal procedure, in such circumstances is that documents, which are intended to be part of a judicial or a commission record should not be published, before the court or the tribunal has occasion to consider them. I am, however, willing to ignore this lapse.

Several matters are mentioned in the statement. It was not with a view to invite some sort of long-range artillery of judicial or political arguments that a letter was written by my office inquiring whether Mrs. Gandhi was willing of intending to come before the Commission and assist the Commission. It was only with a view to save considerable expense which necessarily has to be incurred in the interest security arrangements have to be made. Last time, on expenditure and we were told at the last moment that Mrs. Gandhi did not intend to appear. In our poor country all avoidable expense should be saved so that the benefit of that money may be available to the unprivileged members of our community. It was only for that reason that this letter was written and not to invite an argument either legal, or political or composite. Since, however, several things have been written. I propose briefly to mention some of them.

I have more than once and at least on the last occasion stated as to the procedure that I propose to follow. I have considered the arguments, which were advanced on the last occasion and I see no reason to alter the views I had formed, and I do not think it necessary to go over the same ground again.

If there is any explanation for the conduct, which is likely to be disclosed then certainly it would be proper to come before the Commission and render an explanation. There is a possibility of difference of opinion as to the legality or propriety of the procedure followed by me; but if once a decision is given that the procedure is the procedure, which is intended to be followed or adopted in the hearings, I think, an argument should cease on that question. Having said, what I had to say, I do not propose to say anything else.

If, however, any one thinks that that is not the proper procedure, he or she is welcome to think so and the Commission will not on that account be prevented from proceeding in the normal manner in a complete spirit of detachment with the work of the Commission. The work of the Commission will go on and also it will go on in the two parts, which I have indicated earlier.

So far as the contention which is sought to be raised that I am seeking either to challenge the decision of the President or the action of the Parliament in approving the declaration of Emergency, it must be mentioned that there is some serious misconception. I have no desire and I have no competence to challenge the action of the President nor the approval given by the Parliament; but as directed by the terms of reference by which I am bound, I have got to make an inquiry on item No. (a) of the terms of reference, or 2(a)(i) of the terms of reference which reads as follows:-

'Subversion of lawful processes and well-established conventions, administrative procedures and practices, abuse of authority, misuse of powers, excesses and/or malpractices committed during the period when the proclamation of Emergency made on 25th June 1975, under Article 352 of the Constitution was in force or (and those are important words) in days immediately preceding the said Proclamation'.

and today's hearing and the hearings in this group of cases deal with the various matters relating to the subversion of lawful processes, well-established conventions, administrative procedure and practices or abuse of authority in days immediately preceding the said proclamation. There is no intention to go into any matters, which transpired or felt within the period after the 26th of June, 1975. It is in respect of the matters or transactions, which preceded that date that the cases will be presented before the Commission; and, of course, the arrests, which followed the action, which was taken, pursuant to the transaction which proceeded the early-morning of the 26th of June, 1975.

So far as other matters are concerned, I do not think, I will be justified in making any statement. As I have said earlier, I propose to follow the procedure which after considerable cogitation I have thought, and, am of the opinion, should be followed in holding my inquiry in regard to the terms of reference for making inquiry first into the Commission of any excess; and, if I am satisfied on a consideration of the materials placed before me that there is prima facie evidence of the commission of any excess or excesses, then the procedure which is prescribed of summoning persons who may appear to be involved in the commission of those excesses, to come before me and give explanation after an appropriate notice under Rule 5, clause (1) is issued and given an opportunity as prescribed by Section 8B of the Act.

I need also make it clear that at this stage I am not compelling anyone to come before me. But, also, it must be said that by not appearing before me at this stage, no one can avoid an inquiry into his or her involvement, if I am satisfied on the materials placed before me-

(i) as to the commission of an excess; and

(ii) the prima facie evidence of his or her involvement in the commission of that excess.

Thus, the Chairman is adamant on the two-stage procedure. He sees no reason to alter his view. And, he repeats that section 8B will be applied only at the second stage.

However, he is no longer unconcerned about persons not coming to ‘assist’ in the inquiry. No doubt he still says ‘that at this stage I am not compelling anyone to come before me’. But he warns ‘that by not appearing before me at this stage, no one can avoid an inquiry into his or her involvement’. Earlier, he exhorts that ‘If there is any explanation for the conduct, which is likely to be disclosed, then certainly it would be proper to come before the Commission and render an explanation’. This seems clearly to imply that even at the first stage of the inquiry the ‘conduct’ of the person ‘invited’ is in question, and it would be ‘proper’ for him to ‘render’ his explanation. If that be so, then section 8B is, surely, applicable forthwith.

With regard to the Declaration of Emergency, the Chairman now admits that he has ‘no competence to challenge the action of the President nor the approval given by the Parliament’. Nevertheless, he seeks to justify his inquiry into that matter by virtue of paragraph 2(a)(i) of the terms of reference. I will consider the validity of that proposition later.

In passing, it may be observed that the Chairman does not refute the allegation of Mrs. Gandhi that he has held ‘parleys’ with the Home Minister, the Home Secretary, and, reportedly, the Prime Minister, and ‘discussed matter relating to the scope of the inquiry’.

The Interlude

For the next fortnight there appears to have been a stalemate. On 8th December 1977, Mrs. Gandhi wrote a letter to the Commission drawing its attention to report in two newspapers of a speech made, at a political rally, by the Home Minister, Mr. Charan Singh. He was reported to have said ‘that Mrs. Indira Gandhi would have to appear before the Shah Commission though she had refused to do so twice and, if she still refused, a warrant would be issued’. Mrs. Gandhi submitted that ‘this broadcast comment constitutes gross interference with the proceedings and jurisdiction’ of the Commission. It showed the Home Minister's ‘cynical disregard for processes of law by arrogating to himself the direction of the functioning of this Commission’. Not only did it distort her ‘objections to appear before the Commission’ but, also, the ‘stand taken’ by the Commission itself, She said:

‘The Commission had declared that appearance at this stage of the proceedings was voluntary. In both my representations to the Commission, I regretted my inability to participate in the present proceedings because they were in violation of the Commissions of Inquiry Act and the Rules. But I had also reiterated that I would abide by the directives of this Hon'ble Commission when I am summoned as a witness in proceeding conducted according to the Act and the Rules.

Mr. Charan Singh's statement underlines the fact that he looks upon this Hon'ble Commission as an adjunct of the Janata Party in general, and of the Ministry of Home Affairs in particular. The design would appear to be clear; apart from distorting the position taken by me and the position declared by the Commission, it is to direct the course of action that this Commission may take.’

She then went on to another matter:

‘An even graver interference with the proceedings of the Commission and of arrogation of authority to direct or control the proceedings, is the statement reported in the Statesman of the 5th December, 1977, wherein it is stated, 'Mr. Charan Singh said here today that if the Shah Commission came to the conclusion that there was a prima facie case against Mrs. Gandhi, the Government would prosecute her'.

In the first place, Mr. Charan Singh's declaration would appear to indicate the closest liaison between the Commission and the Home Ministry. Even more serious is the conclusion proclaimed by the Home Minister that, if in this interim report the Shah Commission showed a prima facie case against me, I would be prosecuted. This statement by the Home Minister fortifies the objections I had taken on the 21st November and again on the 2nd December, 1977, that the whole procedure of the Shah Commission was illegal and a grave violation of the Commissions of Inquiry Act and the Rules. Among other things, I had pointed out that there is no provision for a so-called preliminary inquiry. I further pointed out that in this so-called preliminary inquiry, the procedure that is being adopted is only of examining witnesses on oath for the second time-they having already been examined on oath by the investigating agency-of their being subjected to gruelling cross examinations, and of the whole case being put in a prosecution matrix, the Commission assuming the role of both prosecutor and judge.

The Commission has stated that the present investigation is merely preliminary and not pointed at any individual, and that, only later, if any kind of direction against an individual was found, that such person would be given an opportunity of appearing, of cross examining witnesses and of leading defence. The Home Minister has made it abundantly clear that he has no intention of awaiting the second part of the procedure declared by the Commission but that he will act on the so-called preliminary inquiry as sufficient affirmation of guilt to institute a prosecution.

May I say with respect that this is what I had anticipated from the beginning that by this procedure initiated by the Commission, under the guise of a so-called preliminary investigation, persons will be called, evidence not only recorded but extracted, irreparable injury done and then, without following the only procedure known to the Act and the Rules of giving a person whose reputation is likely to be affected an opportunity of appearing with counsel, of cross-examining, and of leading defence, his guilt proclaimed ex-parte. The Home Minister has now made it clear that on the ex-parte declaration of guilt, he will initiate prosecution. The second part of the procedure proclaimed by the Commission will now be forestalled.

May I respectfully submit that the procedure, as now confirmed by the Home Minister, is a calculated travesty no only of natural justice and procedure as contemplated by the Act and the Rules, but a scheme of calculated political denigration and character assassination under the guise of a quasi-judicial inquiry.

Yours faithfully

Indira Gandhi’

8-12-77.

The Chairman took note of this letter in the course of the proceedings on 9th December 1977, and made the following comments:

‘CHAIRMAN: I have no control over the newspapers. Much less have I any control over what the Minister of Home Affairs may say or do. I am appointed by the President to hold a certain inquiry under the provisions of the Commissions of Inquiry Act, 1952. That Act enables to adjust that is for me to adjust the procedure according to the needs of the situation and as I have said more than once that I have after considerable thought and in fairness to all persons concerned adopted this procedure. Otherwise, it would have meant that I would have to sit for years on this Commission which I have no desire to do; have before me crowds of parties and lawyers appearing before me and it would have been a confusion worse confounded than any that can be imagined. I have said more than once that I have first to be satisfied that an excess or excesses have been committed which fall within the terms of my reference. For that purpose, I had materials collected by the investigating authorities. But they left certain gaps and it was necessary for me to determine whether on these materials also an excess or excesses had been disclosed.

Without the assistance of persons who had made statements, it was not possible to determine whether there was prima facie evidence regarding the commission of these excesses which, it was alleged, had been committed and, therefore, it was thought, necessary to examine the persons who had been examined by the investigating authorities and also to give an opportunity to those against whom allegations were made. This was only for the purpose of coming to a prima facie conclusion that there was evidence on which it could be said that there was reason to think that an excess or excesses had been committed. The law requires that notice must be given to persons, inviting complaints and also to persons relating to such matters as may be specified in the notices and especially in the case of a commission of this type where there is a charge of commission of an excess. I could not determine to whom I had to give notice, under rule 5, clause 2(a) before I know what the full facts were. I have had in my chamber occasions to go through a vast number of cases where investigations had been made and I have come to the conclusion that they prima facie did not disclose as the commission of any excess and I have ruled that these cases will not come before the Commission for any public inquiry. It is only those cases in which there was prima facie evidence indicating that there was reason to think that there might be some excess committed that I have held this public enquiry at this stage, and without this public inquiry, I do not think it would have been possible for me (to) reach any prima facie conclusion or reason to think that an excess or excesses have been committed. As I have observed on the last occasion, there might be difference of opinion, as there might be difference of opinion on any problem which may arise however complicated it may be; however simple it may be. I have still taken the view that this is the appropriate procedure having regard to the circumstances of the case and in exercise of my discretion, especially when the Act confers upon me as the Commission, to adjust the procedure in the light of the facts which may arise or may be disclosed. I may again remind that that under Section 8 the Commission, subject to the rules that may be made in this regard, has powers to regulate its own procedure and also to sit in public or in private. Considering the matter, therefore, I thought it necessary that there should be an enquiry in two stages because in my view and reached after considerable thought it was not possible to hold a single consolidated enquiry in regard to both the matters; first, relating to the commission of an excess or excesses and two-the involvement of any person in those excesses. I have therefore, suggested persons who may appear on the investigations made by the investigating authorities to come before me if they appear to have been involved and I may also mention this that not all statements were on oath; some were by letter; some were not on oath; some were contained in correspondence; some was contained in the files of the Government. All this has to be put into proper shape and, therefore, it was necessary to examine certain persons before me so that a coherent picture could emerge. With regard to the commission of an excess and circumstances indicating that there was some reason to think that there was involvement of some person or persons in the commission of that person in an excess. Powers have been conferred upon me by the provisions of the Act to summon any person or to ensure their attendance. The word used is 'to enforce the attendance of any person from any part of India and examine him on oath'. That stage has not arisen at this stage. That stage will arise hereafter in respect of those transactions those cases where I have reason to think that there is prima facie evidence of the commission of an excess or excesses. I have not authorised anyone to say as to what procedure or what powers, out of the various powers conferred upon me by section 8 of the Act, will be exercised by me and as I said, I have no power over what the newspapers say nor what the Home Minister says. I understand that the matter was discussed in the Parliament and something was said in the Parliament. Even of that I have no authenticated copy before me as to what was said. But I do nor propose to sever myself from the strict compliance of the provisions of law which given me certain authority and which do not give me other authority. I do not propose to the circumstances as they arise. I may say that Mrs. Gandhi has, in her last letter said that whenever a summon is issued, she will appear before me and I have no reason to think that she will not appear. I may also say this that there could be no question of anybody acting with my concurrence on the result of any preliminary inquiry. The rules require under rule 5, clause 2(a) that I shall give notices win also be given as required by Section 8B and 8C if it is likely that some remarks may have been made as regards the conduct of any person.

That person will be given ample opportunity to explain his conduct. Further, the procedure with regard to the giving of an opportunity to all persons who are concerned with the making of any statement or my likelihood of making a remark against them, will have an opportunity of appearing before me. They will have the fullest opportunity of cross examining the witnesses who may be examined. In short, I propose strictly to follow the provisions of the law but that can only be at the second stage and not at the first stage because this has to be a preliminary inquiry, a regards the commission of an excess or excesses have been committed, I cannot proceed to hold an inquiry consistent with the terms of rule 5(2)(a) nor consistent with section 8B and 8C.

Thank you.’

There is nothing particularly new in these comments. The chairman reiterates the two-stage procedure and gives the same reasons. And, there are the same inconsistencies. He says that while inquiring into the commission of an excess ‘it was thought necessary to examine the persons who had been examined by the investigating authorities and also to give an opportunity to those against whom allegations were made’. Of course, he added that ‘This was only for the purpose of coming to a prima facie conclusion that there was reason to think that an excess or excesses had been committed’. A little afterwards he says: ‘I have, therefore, suggested persons who may appear on the investigations made by the investigating authorities to come before me if they appear to have been involved ………’ To me it appears plain that these are indirect or tacit admissions that it is not possible to conduct the first stage of the inquiry without giving a hearing to the persons ‘against whom allegations were made’ or who ‘appear to have been involved’. That demonstrates, better than anything else, that the two questions, on which the Chairman rests his two stage theory, are not differentiable in the course of an inquiry and cannot be kept apart. Every time the Chairman expounds the theory it breaks down in the process of statement.

The Chairman insists that at the first stage he ‘cannot proceed to hold an inquiry consistent with the terms of rule 5(2)(a) nor consistent with section 8B and 8C’. Yet, he himself is giving an ‘opportunity to those against whom allegations were made’. This is what sections 8B and 8C require. Then, why not apply those sections straightaway? In the reasoning of the Chairman, I can find no answer, except that he is in a hurry and has no desire ‘to sit for years on this Commission’.

The difficulty which he expresses: ‘I could not determine to whom I had to give notice under rule 5, clause 2(a), before I know what the full facts were’ is not understandable when he himself refers to ‘these against whom allegations were made’ and those who ‘appear on the investigations made ……… to have been involved’. Either the conduct of such persons was being inquired into, whether expressly so stated or not, or their reputation was at stake. I should have thought that the conditions for the application of sections 8B and 8C were amply fulfilled.

Again, the Chairman calls the first stage a ‘preliminary inquiry’. According to ordinary notions, both legal and otherwise, the purpose of preliminary inquiry is to reach a ‘prima facie’ conclusion. But the Chairman says: ‘It is only those cases in which there was prima facie evidence indicating that there was reason to think that there might be some excess committed that I have held this public inquiry at this stage………’. Despite hard struggle, I am afraid I am out of my depth. What is the point of holding a ‘preliminary inquiry’ when ‘prima facie evidence’ of the commission of an excess has already been found? It seems to me to be a duplication of procedure, and, therefore, a waste of time.

The ‘Summons’.

On 19th December 1977, the suspense was ended. The Commission issued a ‘Summons’ on that date to Mrs. Gandhi. This is an intricate document which needs careful analysis. I will, therefore, set it out in full:

‘NO. SC/Sec/'W/77

SHAH COMMISSION OF INQUIRY

PATIALA HOUSE, NEW DELHI-110001.

SUMMONS UNDER SECTION 4(a) OF THE

COMMISSIONS OF INQUIRY ACT, 1952.1

To:

Smt. Indira Gandhi,

12, Wellingdon Crescent,

NEW DELHI

Whereas the Commission set up under the Gazette of India Extraordinary Notification No. S.O. 374(E) dated the 28th May, 1977, under Section 3 of the Commissions of Inquiry Act, 1952, to inquire into the matters specified in the said Notification, thinks it necessary to record your evidence orally.

And whereas it appears that it is necessary to inquire into your conduct in regard to those matters, it is hereby proposed to give you an opportunity of being heard in the inquiry and to produce evidence in your defence.

You are, therefore, hereby directed under authority vested in the Commission by Section 5(2) read with Section 8B of the Commissions of Inquiry Act, 1952, to appear before the Commission in person from 9th to 11th January 1978 at 1000 hrs. at the Patiala House, New Delhi, to give evidence on oath in regard to all the facts within your knowledge pertaining to:-

(i) the case of reversion of Mr. Justice R.N. Aggarwal, High Court, Delhi;

(ii) the case regarding reappointment of Mr. Justice U.R. Lalit, an Additional Judge of the Bombay High Court;

(iii) institution of CBI cases against S/Shri R. Krishnaswamy, Deputy Secretary, Heavy Industry, A.S. Rajan, Development Officer, DGT&D, L.R. Cavale, Chief Marketing Manager, STC and P.S. Bhatnagar, Deputy Chief Marketing Manager, STC;

(iv) Appointment of Shri T.R. Tuli as Chairman and Managing Director of Punjab National Bank;

(v) Appointment of Shri K.R. Puri as Governor of Reserve Bank of India;

(vi) deviation from the established procedure and irregularities in the reconstitution of Air India and Indian Airlines Corporations.

(vii) detention of Inspectors of Textile Committee/Inspectors of Customs under MISA in June 1976;

(viii) detention of Shri Bhim Sen Sachar and seven others under the MISA;

(ix) case relating to the requisitioning of the Vishwa Yuvak Kendra, Chanakayapuri, New Delhi under the DISI Act;

(x) case of alleged improprieties committed in regard to Shri Mangal Bihari, IAS of Rajasthan cadre and termination of the services of Smt. Chandarwati Sharma, Assistant Teacher;

(xi) (a) events between 12th and 22nd June 1975;

(b) events between 23rd and 25th June 1975;

(c) MISA detentions and other arrests on the night of June 25th/26th, 1975 and thereafter, and not to depart without the permission of the Commission.

You are further directed to produce on that date the documents and records in your custody or power, which you may consider relevant to the Inquiry.

You are informed that you will be given opportunity to cross examine persons, whose statements have been recorded in regard to the matters specified hereinbefore and that you will be entitled to address the Commission, and that you will be entitled to be represented before the Commission by a legal practitioner or with the permission of the Commission by any other person.

You are requested to sign the duplicate copy of the Summons and return it to the undersigned.

Given under my hand this 19th day of December 1977.

By order of the Commission.

Sd/- P.R. Rajgopal,

Secretary, Shah Commission of Inquiry.

(Please turn over)

Note:

(i) If you desire to examine any witness or witnesses in your defence in the aforesaid matter, the witness or witnesses may be kept present before the Commission on the date on which you are directed to appear.

(ii) If you desire that summons be issued to procure the presence of such persons as your witnesses, you are requested to apply to the Commission for issuing summons of such persons at least a week before the date fixed for your appearance.

(iii) If you desire to cross-examine persons whose statements have been recorded in regard to matters hereinbefore, you are requested to intimate the names of such persons to the Commission at least 10 days before the commencement of the hearing so that summons to such persons may be issued in time.

Encl.: Seven files (as per list attached).’

The ‘List of Files’ is not necessary and is, therefore, omitted.

It will be observed that in the title this document purports to be a ‘Summons under Section 4(1)’. But, in the body there is a reference to ‘Section 5(2) read with Section 8B’. So, I propose to scrutinise this document from the standpoint of each of those sections in turn.

Section 4(a) confers on the Commission the power of ‘Summoning enforcing the attendance of any person ………. And examining him on oath’. The usual form of summons to a witness contains only a command to attend in a cause or matter. The witness is required to appear in person, and, that is all. This is borne out by Form No. 13, and others, in Appendix B to the Civil Procedure Code are of the same kind. Never is the witness informed about the topics on which it is intended to examine him. To do so, would defeat the whole purpose, as he would be forewarned. It is the last thing a prospective witness should ever be told. Yet, curiously, the ‘Summons’ issued to Mrs. Gandhi directs here to appear ‘to give evidence on oath in regard to all the facts within (her) knowledge pertaining to’ the 11 items which are specified thereafter. The ‘authority’ invoked for making this direction is from ‘Section 5(2) read with Section 8B’, and not section 4. Hence, one is compelled to conclude that this document is not a proper summons, for it violates the elementary principle that a witness should not be informed of the matters on which he is to be questioned.

Section 5(2) gives the Commission power to ‘require any person ……… to furnish information’ on ‘points or mattes’ relevant to the inquiry. A requisition under this ‘section would not doubt specify the ‘points or matters’ on which information is sought. Consequently, the reference to the 11 items in the document served on Mrs. Gandhi is comprehensible in the context of this section. But, Mrs. Gandhi is not asked to ‘furnish’ any ‘information’: She is directed ‘to appear before the Commission’ and ‘to give evidence on oath’ regarding those 11 items. The power to take ‘evidence on oath’ is not conferred by section 5(2). It follows that this document is not a proper requisition under that section.

Section 8B enjoins the Commission to give ‘a reasonable opportunity of being heard’ and ‘to produce evidence in his defence’ to a person whose conduct is inquired into or whose reputation is likely to be prejudicially affected by the inquiry. It may, perhaps, be said that the 11 items mentioned in the document sent to Mrs. Gandhi identified the subjects respecting which her ‘conduct’ was sought to be ‘inquired into’. That is not the way the document reads. In the second paragraph Mrs. Gandhi is told that ‘it is necessary to inquire into your conduct in regard to those matters’. That can only refer to something which has been said before and not what has yet to follow. The word ‘those’ takes one back to the first paragraph; and there, the reference is to ‘the matters specified in the said Notification’ which means the terms of reference. Therefore, I do not accept that on its true construction the document intimates to Mrs. Gandhi that her conduct with regard to the 11 items is the subject of inquiry. What it says is that she is directed to appear ‘to give evidence on oath’ regarding those 11 matters. Since the conduct to be inquired into is not specified, the object of section 8B is not attained.

However, leaving that aside, and assuming that the subjects of inquiry into her conduct are the 11 items, it is perfectly obvious that section 8B gives no power to the Commission to summon any person or examine him on oath. For this reason alone, this document does not conform with section 8B.

Naturally, one wonders why was it necessary to create this bizarre document which does not fit with any of the sections which it cites. By seeking to combine all the three sections it produces a muddle sufficient to befog even a legally trained mind. The simple and obvious course was to serve three separate documents on Mrs. Gandhi; a summons under section 4(a); a requisition under section 5(2); and, a notice affording an opportunity to be heard and lead evidence in defence under section 8B. On a subsequent occasion the Chairman indicates that this document was prepared in a multipurpose form to save time. If that was the operative consideration, three separate documents, each confined to a particular section, could have been served simultaneously. Indeed, as will presently appear, another document was, in fact, served on Mrs. Gandhi at the same time as the ‘Summons’. In these circumstances, the reasons for the peculiar drafting of the ‘Summons’ remain obscure.

Another point to observe is that the ‘Summons’ distinctly says that Mrs. Gandhi will be given an opportunity to ‘cross examine persons whose statements have been recorded’. It is so stated in the second last paragraph. Although that paragraph does not mention section 8C, it is manifest that it is designed to comply with that section by affording the rights it gives. Note (iii) at the bottom of the ‘Summons’ asks Mrs. Gandhi to intimate the names of the persons ‘whose statements have been recorded’ whom she wishes to cross-examine, so that they can be summoned. Thus, it was legitimate for Mrs. Gandhi and her advisers to believe that her request, for cross-examining those who had testified adverse to her, had been granted. They were also entitled to assume that the ordinary procedure would be followed, and she would be allowed to lead her evidence in defence after those witnesses had been cross-examined.

From the ‘List of Files’ attached to the summons one important conclusion emerges. Out of the 11 items mentioned in the summons, the first 5 are the same for which Mrs. Gandhi had received the ‘invitation’ to assist' dated 25th October, 1977. It will be remembered that she had been furnished with ‘summaries’ of those 5 cases. Along with the summons she was sent the files relating to the other items, but as regards the 5 it was stated in the ‘List’ that the files ‘have already been furnished to Smt. Indira Gandhi, no further evidence had been recorded. Counsel for the Union admitted that this was the fact. So, it transpires, that, at least, a regards the 5 cases for which the ‘invitation’ was sent, the state of the ‘invitation’ to the ‘Summons’. There was no further evidence which had come on record which may have caused the Commission to change its previous view. The point made on behalf of Mrs. Gandhi is that since the state of the evidence was unchanged, the Commission knew even at the time of the ‘invitation’ that actually Mrs. Gandhi's conduct was the subject of inquiry, as was later recognised in the summons. Therefore, it is said, the notice under section 8B ought to have been issued forthwith without interposing the ‘invitation’. That was the course the Commission itself had adopted in regard to the other 6 items in the ‘Summons’ for which no ‘invitation’ had ever been sent.

In view of what is to follow, item 11 in the summons should be compared with the ‘case’ mentioned in the ‘invitation’ of 24th November 1977. It will be noticed that sub-items (a), (b) and (c) in the summons are substantially identical with ‘Part I’, ‘Part II’ and ‘Part III’ of the ‘case’ referred to in the ‘invitation’. Even the dates mentioned are the same. however, the title ‘Imposition of Emergency’ to be found in the ‘invitation’ is not there in the summons.

The Notice under Rule 5(2)(a)

On the same date, 19th December 1977, a ‘Notice under Rule 5(2)(a)’ was issued to Mrs. Gandhi. It said:

‘You are hereby directed under Rule 5(2)(a) of the Commissions of Inquiry (Central) Rules, 1972 to furnish to the Commission a statement relating to the following matters within ten days of the receipt of this notice:-

Then the same 11 items which are in the summons are set out, except that Arabic instead of Roman numerals are used. The notice closes with the instruction:

‘Every statement furnished under clause (a) of sub-rule (2) of rule 5 should be accompanied by an affidavit in support of the facts set out in the statement sworn by you. While furnishing statement/statements under clause (a) of sub-rule (2) of rule 5, you shall also furnish to the Commission alongwith the statement, a list of the documents, on which you propose to rely and forward to the Commission the original or true copies of such documents, as may be in your possession or control and shall also state the name and address of the person from whom the remaining documents may be obtained.

Insofar as this notice directs Mrs. Gandhi to furnish a statement, it is quite contrary to rule 5(2)(a). A bare reading of that rule shows that it merely requires the Commission to ‘issue a notice’. it gives no power to the Commission to make any order. As the rule itself clearly indicates, the object of the notice is that a person ‘should be given an opportunity of being heard’. How can anyone be ‘directed’ to avail of that opportunity? Of course, if he does not, he takes the risk of adverse inferences being drawn against him. But it is not possible to coerce a person to participate in a proceeding or defend himself if he is not so inclined. That is why the rule requires only a notice to be issued, and not an order. Even counsel for the Union accepted that no one could be compelled to furnish a statement under rule 5(2)(a). The point is really too obvious.

The other comment which falls to be made is that this notice could certainly have been issued much earlier. According to rule 5(2)(a), such a notice should be issued by a Commission ‘as soon as may be after its appointment’. It is undeniable that this notice was issued rather late.

The Reply to the Summons and Preparations for the Hearing

In answer to the summons, Mrs. Gandhi wrote a letter dated 30th December, 1977 to the Commission. After referring to Note (iii) ‘in the summons, which requested her to intimate the names of the persons she wished to cross-examine, she said:

‘I hall require for cross-examination all persons whose depositions have been recorded by the Commission in respect of the 11 items listed in the Summons and also all those whose affidavits/statements have been taken on record. I shall require the opportunity not only to scrutinise their depositions, but request that copies be given of all documents to which reference has been made by any of the witnesses whose statements have been recorded in the matters mentioned hereinbefore or other documents which may be relevant in order to given necessary instructions to my counsel.

2. I shall require for cross-examination all investigating officers who recorded the statements of persons whose depositions or affidavits have been recorded.

3. I shall also require an opportunity to scrutinise, and request that I be given copies of, all documents to which reference may be made by any of the witnesses in cross-examination by my counsel.

4. I request that copies of all previous statements made by persons examined by the Commission, especially statements made by such witnesses to the Commission's investigating agencies, be made available to me for purposes of cross-examination.

5. I request that copies of all the above-mentioned documents be made available to me at least a week before the cross-examination of a concerned witnesses, to enable me to instruct my counsel and to enable him to prepare his cross-examination.

6. I have already stated that I wish to cross-examine all the persons examined by the Commission in respect of the 11 items mentioned, those whose statements have been taken on record and all those investigating officers who have recorded any of the statements of those examined as witnesses or whose statements have been taken on record.

7. To facilitate the work of the Commission, I append a list of the names of the persons whose presence if required for the purpose of cross-examination by my counsel.’

The list appended gave the names of the persons, required for cross-examination, separately in respect of each item in the summons.

To this, the Secretary of the Commission replied with remarkable promptitude on the very same day, 30th December 1977. After acknowledging the receipt of Mrs. Gandhi's letter, he proceeded as follows:

‘2. I have been desired by the Commission to inform you that such of the witnesses who have been examined by the Commission will be summoned for your cross-examination.

3. Regarding the documents that you have asked for in para 1 of your reply, I have been desired by the Commission to inform you that all relevant statements and depositions of witnesses who had in some form or the other referred to you in their statements/depositions have already been forwarded to you. If you want to refer to any additional statements/documents in this connection, you are hereby informed that you or your lawyer may visit the office of the Commission on any working day between 10.00 AM and 5.00 PM and scrutinise the relevant records and/or take copies or arrange to take copies of such of the documents as may be required by you. the Commission regrets its inability to furnish to you copies of the documents through its own agency.

4. I have been desired by the Commission to inform you that the proceedings will commence on 9th January, 1978 as schedule’.

In paragraph 3, this letter corroborates the conclusion stated just a little earlier that no further evidence was recorded after the ‘invitation’. If some more evidence has been recorded it would not have been possible to say, as regards the first 5 items in the summons, that ‘all relevant statements and depositions of witnesses……………have already been forwarded to you’.

Mrs. Gandhi then wrote a further letter dated 3rd/4th January 1978 to the Commission. Since the letter bears two dates, presumably it was despatched on the later one, 4th January 1978. She acknowledged the letter of the Commission, and then said:

‘2. It has been noted that only such of the witnesses who have been examined by the Commission will be summoned for cross-examination. Apparently, this will not include those who have made affidavits or whose statements have been brought on record. My counsel will make submissions with regard to the exclusion of the opportunity to cross-examine those whose affidavits and statements have been taken on record, when he appears before the Commission.

3. With regard to the documents that I had asked for in para 1 of my reply, it has been pointed out that my counsel will be given the opportunity to scrutinise all the relevant records and/or take copies or arrange to take copies of such of the documents as may be required. Since scrutiny will take some considerable time and, after that, the taking of copies will take time, junior counsel will first scrutinise and, after that, arrange to take copies. Inevitably, this process will take at least ten or fifteen days after which such documents will be required for scrutiny by senior counsel for purposes of cross-examination and for any statement that I may make in my defence.’

What is worth noting is that the last line of this letter evinces the intention of Mrs. Gandhi to make a statement in her defence, after the opposing witnesses have been cross-examined.

With the like speed as before, the Secretary of the Commission answered the letter of Mrs. Gandhi on the very day it was received, 4th January 1978. He wrote:

‘2. I have been desired by the Commission to inform you that we are summoning all the witnesses whose affidavits/statements have been brought on record to enable you to cross-examine any or all of them.

3. With regard to para 3 of your letter I am desired to inform you that the Commission premises are open to you or to your counsel for scrutinising and taking copies of the record which are relevant to the cases under inquiry. I am also desired by the Commission to inform you that you have had sufficient time to take copies of such of the documents as you may have required.

4. The Commission will proceed with its hearing as schedule from 9th January, 1978 onwards.’

With this letter the stage for the hearing on 9th January 1978 was set. Mrs. Gandhi and her advisers must have presumed that they would first be allowed to cross-examine the persons named in her list sent on 30th December 1977, and, thereafter, she would be entitled to enter upon her defence. There is nothing in any of these letters which gives any inkling to the contrary.

The Reply to the Notice under Rule 5(2)(a)

The correspondence ensuing from the notice under rule 5(2)(a) runs parallel with that on the summons. On 30th December, 1977, Mrs. Gandhi replied to the notice as follows:

‘Along with a Summons in respect of Section 8B of The Commission of Inquiry Act, 1952, I have received a Notice under ‘Rule 5(2)(a) of The Commission of Inquiry (Central) Rules, 1972, by which I am required to furnish a statement relating to the 11 items listed in the Notice within 10 days of receipt of the Notice.

Both the Notices in respect of Section 8B and Rule 5(2)(a) were received on the evening of the 20th December, 1977. I have to respectfully submit as follows.

Since I have been summoned in respect of Section 8B and it has been categorically stated that I have been summoned in order to inquire into my conduct with regard to certain specified items, and having been given an opportunity to be heard in my defence, neither Rule 5(2)(a) not the allied sub-rules of Rule 5 are applicable tome.’

It can be seen from this letter that Mrs. Gandhi is under the impression that the ‘Summons’ which she had received was ‘in respect of section 8B’. Of course, section 8B does not provide for the issuance of summons, and what she must have meant was notice under that section. In fact, that is what she calls it in the second paragraph of the letter. The significance of this is that sections 4 and 5(2), which are also mentioned in the summons, do not seem to have made any impact on her mind or that of her advisers. She thought that she was simply being given an opportunity of being heard and to produce evidence her defence in accordance with sections 8B and 8C. that is what she had throughout requested. I emphasise this because it reveals her state of mind. It seems clear that she now intended to participate in the inquiry, and after cross-examining the persons she wanted called, would enter on her defence. To put it no higher, it seems very likely that she, also, intended to enter the witness-box, on her own behalf, voluntarily. I would add this to the other indications of the like effect that I have already mentioned.

The reply to Mrs. Gandhi's letter was sent by the Secretary of the Commission on the same day, 30th December 1977. It reads as follows:

‘The Commission is in receipt of your reply to the notice issued under Rule 5(2)(a) of the Commissions of Inquiry (Central) Rules, 1972.

2. The Commission has considered your reply. I have been desired by the Commission to request you to furnish your statement with regard to the 11 items listed in the notice already issued to you alongwith the notice under Rule 5(2)(a) of the Commissions of Inquiry (Central) 1972.’

It is very noticeable that what was ‘directed’ to be done in the notice under rule 5(2)(a) has now been diluted to a ‘request’. And, this is after Mrs. Gandh's refusal to comply with the direction. Had it been possible to make an enforceable order under rule 5(2)(a), that would have not been the Commission's reaction. Perhaps, it was realised, as I said a little while ago, that it is not possible to coerce a person to participate in a proceeding or defend himself if he is not so inclined; and rule 5(2)(a) must be read in that sense, when even otherwise flows from the bare words of the rule.

Mrs. Gandhi responded by repeating her previous stand. She did so in a letter dated 3rd/4th January 1978, which reads as follows:

‘I am in receipt of your letter No. SC/Secy./77(i) of the 30th December, 1977, informing me that the Commission has considered my reply and that I am desired by the Commission to furnish my statement with regard to the 11 items listed in the notice already issued to me under Rule 5(2)(a) of The Commission of Inquiry (Central) Rules, 1972.

I have to repeat what I had stated in my reply to the notice, namely, that since I have been summoned in respect of Section 8B and it has been categorically stated that I have been summoned in order to inquire into my conduct with regard to certain specified items, and having been given an opportunity to be heard in my defence, neither Rule 5(2)(a) nor the allied sub-rules of Rule 5 are applicable to me.

My counsel will make the necessary submissions when he appears before the Commission.’

There was no further reply by the Commission to this letter.

The Summons to Mr. Mukherjee and his Reply.

Before I go on to describe the hearing in Mrs. Gandhi's case, I must bring up to date the case of Mr. Mukherjee which has been left behind. He, too, received a summons and a notice simultaneously. They were verbatim the same as those which Mrs. Gandhi had received. They, also, bore the same date, 19th December 1977. But of course, the ‘cases’ mentioned were different. Mr. Mukherjee was summoned, and, also, required to furnish a statement, in respect of the following cases:

‘1. Appointment of Shri T.R. Vardachari as Chairman of the State Bank of India.

2. Enquiry relating to detention of Smt. Gayatri Devi and Lt. Col. (Retd.) Bhawani Singh under COFEPOSA.

3. Baroda Rayon Corporation-search and seizure under Section 132 of the Income Tax Act, 1961.’

The summons required Mr. Mukherjee to ‘appear before the Commission in person from 12th to 14th January 1978’.

It will be recalled that as regards item 1 in the summons, Mr. Mukherjee had already appeared in response to the ‘invitation’ and been examined on 1st October 1977. Admittedly, no further evidence had been recorded on that matter thereafter. Therefore, nothing new had intervened to justify the sending of notice under section 8B at this stage rather than earlier. And, in respect of item 3 there had been no preceding ‘invitation’. In all these respects the case of Mr. Mukherjee is entirely similar to that of Mrs. Gandhi.

I should mention in passing, that now for the first time, alongwith the summons, Mr. Mukherjee was given the ‘Summaries’ of the ‘cases’ regarding which he was called. None had been supplied to him with the ‘invitations’.

Mr. Mukherjee answered the summons by a letter dated 2nd January 1978. He raised a preliminary objection as follows:

‘Since the notice states that it is necessary to inquire into my conduct, it is evidence that my conduct concerns the matters specified in the notice. The notice, however, has not given any particulars of my alleged misconduct concerning the said matters regarding which Hon'ble Commission has decided to hold an inquiry. The specification of the matters regarding which I have been asked to give evidence does not give me any clue as to the nature of my misconduct which is the subject matter of inquiry. Unless particulars of my misconduct concerning these matters and constituting the subject matter of inquiry are furnished to me I am unable to prepare my defence and am not in a position to decide as to the official records which I would like to inspect and have the same produced in defence or the defence witnesses whom I would like to produce or the particular witnesses whom I would like to produce or the particular witnesses whom I would like to cross-examine. In the absence of particulars I would be seriously prejudiced in my defence. I therefore request that this Hon'ble Commission may furnish tome the particulars of my conduct, concerning the specified matters, which this Hon'ble Commission has decided to inquire.’

Then, Mr. Mukherjee went on to say that he would require ‘for cross-examination, all persons whose depositions may be recorded by the Commission’ and other witnesses, in more or less the same terms that Mrs. Gandhi had done. He also asked for inspection and copies of documents in the same wide terms. At the end, ‘without prejudice to the foregoing’, he gave the names of the persons he wanted to cross-examine with reference to each item in the summons.

The Secretary of the Commission replied to Mr. Mukherjee on the same day, 2nd January 1978. He said: ‘……………..the witnesses who have been examined by the Commission will be summoned for your cross-examination’. To the preliminary objection raised by Mr. Mukherjee, he answered in paragraph 3 as follows:

‘3. As regards specifying the matters regarding which you have been asked to give the evidence. I have been desired by the Commission to inform you that there details are evident from the case history provided to you alongwith the depositions of the witnesses.’

The rest of the letter deals with the granting of inspection of documents and is not material.

On 6th January 1978, Mr. Mukherjee wrote back to the Commission and said:

‘In reply to para 3 of the letter dated 2nd January 1978 N. SC/Secy./W/77, I state that the contents of my reply dated the 2nd January 1978 have not been fully appreciated. I have not requested the Hon'ble Commission to specify the matters regarding which I have been asked to give the evidence. I have requested the Hon'ble Commission to furnish me the particulars of my alleged misconduct which are the subject matters of inquiry. In the absence of these particulars I can neither decide about the defence witnesses, nor about the records which I would like to inspect nor about the witnesses whom I would like to examine. I therefore request that these particulars may be furnished to me immediately.’

The reply of the Secretary to the Commission was sent on the very same day, 6th January 1978. It reads:

‘Please refer to your communication dated the 6th January, 1978 to the Commission regarding summons issued under Section 4(a) read with section 8B of the Commission of Inquiry Act 1952.

2. I have been desired by the Commission to inform you that the Commission has nothing more to add to its earlier reply dated the 2nd January, 1978, on the subject.’

There the matter rested.

I think, there can be no doubt as to what Mr. Mukherjee was seeking. He said in his first letter that he wanted particulars of his ‘conduct, concerning the specified matters’ into which the Commission ‘has decided to inquire’. In any case, even the remotest possibility of misunderstanding was removed by his second letter in which he clarified that he had not requested the Commission for particulars of matters regarding which he had been asked to give the evidence' but of his ‘alleged misconduct which are the subject of inquiry’. To that he got no answer. Viewed in the light of subsequent developments, all this becomes very important.

If it be taken that, in his letter of 2nd January 1978, the Secretary of the Commission really meant to refer to the ‘particulars of Mr. Mukherjee's alleged misconduct’, though he used the inapt words ‘the matters regarding which you have been asked to give evidence’, another significant conclusion presents itself immediately. The letter says ‘these details (i.e. the particulars) are evident from the case history provided to you’. Paraphrased, that means, the particulars of Mr. Mukherjee's alleged misconduct are apparent from the case summaries. If that was so, then notice under section 8B ought to have been issued to Mr. Mukherjee the moment of the case summaries were prepared as his conduct was patently in question, and there was no possible scope for an ‘invitation’. It causes the statements of the Chairman, in his various earlier orders, that he was unable to discern ‘who is responsible for the commission of the excess’, to be come incredible.

The Notice under Rule 5(2)(a) to Mr. Mukherjee and his reply.

Like the notice to Mrs. Gandhi, the notice under rule 5(2)(a) addressed to Mr. Mukherjee ‘directed’ him to furnish a statement. The reply of Mr. Mukherjee is dated 30th December 1977. It is a long letter in which he cites various rules and argues that under rule 5(2)(a) the Commission was obliged ‘to issue notice’ to a person at the earliest stage after its appointment, before it decided to hold an inquiry into any complaint, and before it decided to record oral evidence'. He said, the notice under that rule ought to have been issued to him ‘before the case histories were prepared’. As things stood, the ‘case histories’ had already been prepared ‘unilaterally’ without giving him ‘any opportunity to rebut it’. Moreover, the Commission had also started oral evidence. He summed up his submissions as follows:

‘Now that this Hon'ble Commission has already decided to look into my conduct and put me in the position of an accused. Rule 5(2)(a) no longer applies.

Even otherwise, the very object of furnishing a statement to this Hon'ble Commission under Rule 5(2)(a) now stands defeated. The occasion for doing so is long past.

In fact the purpose of 5(2)(a) is two fold: firstly to enable the Commission to decide whether there is prima facie case for inquiry or not; secondly, whether oral evidence is called for or not. This purpose stands completely frustrated. Not only has this Hon'ble Commission on its own stand, by issuing summons to me, clearly demonstrated that it was decided to hold in inquiry against my conduct, but this Hon'ble Commission has been recording oral evidence, for quite a few months. In fact I was earlier asked to appear and given oral evidence and have now been even served with summons for that purpose. There is, therefore, no occasion or purpose left for the furnishing of any statement to this Hon'ble Commission under Rule 5(2)(a).’

The Secretary of the Commission answered the next day, by a letter dated 31st December 1977. He said:

‘With reference to your letter dated the 30 December, 1977 addressed to the Commission, I am desired to request you to furnish your statement to the Commission on the cases already referred to you under Rule 5(2)(a) of the Commissions of Inquiry (Central) Rules 1972. If your statement is not received in time, I have been desired by the Commission to inform you that the Commission will presume that you have nothing to say on the subject.’

Here, there are three points to observe. Again, the word ‘directed’ in the notice under rule 5(2)(a) has been toned down to a ‘request’ after the refusal to obey. Secondly, there is no discussion whatsoever of the law. Mr. Mukherjee's arguments are left unnoticed. Thirdly, the Commission expressly states, albeit in the form of a warning, what will be the consequence of not furnishing the statement. Mr. Mukherjee is informed that the Commission ‘will presume’ that he has ‘nothing to say on the subject’. In other words, an adverse inference will be drawn. It is most significant that there is not the slightest suggestion of any other consequence. This indicates how the law was conceived by the Commission at that time. Afterwards, there was a radical change.

Mr. Mukherjee replied by a letter dated 6th January 1978 which reads as follows:

In reply to the letter of the 31st December 1977 No. SC/Secy/W/77, I state that the same does not contain any reasons dealing with my submission contained in my reply to the notice under Rule 5(2)(a) dated the 31st December, 1977. My objections have to be dealt with ‘by a judicial order after hearing me in the absence of which the Hon'ble Commission cannot presume that I have nothing to say on the subject.’

So, the controversy was carried over to the hearing.

The Proceedings on 9th January 1978

When the proceedings of the Commission commenced on the morning of 9th January 1978, the persons to be cross-examined, and other witnesses, were present. Mrs. Gandhi came with her counsel, Mr. Frank Anthony. The Central Government was represented by Mr. N. Lekhi. The councel for the Commission was Mr. Khandelwala. Although Mr. Pranab Mukherjee was not due to appear on this day, nevertheless, his counsel, Mr. Madan Bhatia, was also there, no doubt to watch proceedings on behalf of his client.

The proceedings began with the Chairman inquiring whether ‘Any statement has been filed by Mrs. Gandhi in pursuance of Rule 5?’ Mr. Anthony said: ‘No, My Lord’, and proceeded to make the following submission:

‘Mr. Frank Anthony: We say that in our respectful submission that since 8(B) had been applied, I was being given an opportunity of defending myself, ex-facie 5(2)(a) of the rules would not be attracted and I would make my submission if your Lordship so please?

Chairman: I would like to hear that submission.

Mr. Frank Anthony: My Lord, My Lord. Before that, may I crave your Lordship's indulgence to please let us know the sort of procedure, the main sort of phases, so to speak-examination-in-chief, cross-examination, statement of the respondent, defence. If those are the phases, My Lord then there would be not, there would be no, if your Lordship may be pleased to hear me in the matter.

Chairman: I will certainly. And the view that I have prima facie formed is that that under rule 5 you have to file a statement when you are called upon to file that statement under rule 5(2)(a). that has nothing whatever to do with a summons issued under section 8(B) and, therefore, if you do not file a statement I would have to examine the person to whom, I would have to examine the person to whom, I would have to examine the person to whom a notice has been issued under section (that should be ‘rule’, not ‘section’) 5(2)(a), myself to ascertain what the defence is. If the statement is not adequate enough to meet the evidence which appears from the investigation it could be necessary also for me to examine to determine what the defence is.

Mr. Frank Anthony: My Lord

Chairman: After defence is disclosed, I would try and ascertain what are the points which remain in contest or in issue. On that I will give an opportunity for cross-examination of the witnesses, whose testimony has been recorded treating the statements made in examination-in-chief. You will have ample opportunity to cross-examine those witnesses and counsel for the Commission will be re-examining the witnesses. If thereafter you desire to examine any witnesses for the defence, they will be allowed to be examined for the defence.'

I should say, at once, that the view of the Chairman that ‘under rule 5 you have to file a statement’ is untenable on the words of the rule. As I have said already, even counsel for the Union conceded that there was no obligation under rule 5(2)(a) to furnish a statement. He did not attempt to support the position taken by the Chairman.

It is clear from the remarks of the Chairman that he intends to examine Mrs. Gandhi because she has not filed a statement. His purpose is ‘to ascertain what the defence is’. The procedure he outlines gives her the right to cross-examine witnesses only ‘After (her) defence is disclosed and ‘the point which remain in contest or in issue’ have been ascertained.

However, even if she had filed a statement the result would have been the same if the statement was ‘not adequate enough to meet the evidence which appears from the investigation’. In that case, too, she would have to be examined ‘to determine what the defence is’.

Mr. Anthony answered as follows:

‘Mr Frank Anthony: My Lord, please your Lordship. My Lords my first, I shall just sort of draw your Lordship's or remind Your Lordships of the notices. There was … there was a notice My Lord, issued under Rule 5(2)(a) Central Rules 72 is dated 19.12. My Lords and I received it. When I say I, My Lord my client respondent Mrs. Indira Gandhi received it on the 20th. Then My Lords in reply to that we stated that since we had been summoned also at the same time in respect of 8(B) and it was categorically stated in that summons that my conduct was to be inquired into and above all that I was being given an opportunity to be heard in defence. That My Lord is gravamen of my submission to your Lordship. An opportunity to be heard in defence and that neither rule 5(2)(a) nor the allied sub-rules of rule 5 applies.’

The argument went on the whole day. It is recorded in 104 pages of the transcript. I will refer only to a few passages which assume especial importance in retrospect.

At an early stage of his address, Mr. Anthony put his submission succinctly:

‘Mr. Frank Anthony: ……………………………

Now My Lord in order to appreciate in my respectful submission the scheme of Act and the rules and the place which 5(2)(a) occupies vis-a-vis 8(B), that is the grain (probably, gravamen) of my argument that 5(2)(a) and 8(B) cannot exist coterminously, that 5(2)(a) can never be in the picture when 8(B) is attracted. That is the heart of my argument.

About 30 pages later, he argued that it would be contrary to natural justice that he should be required to disclose his defence. The retort of the Chairman was:

‘Chairman: Where is…where is the principle of natural justice which says that you shall not be called upon to disclose your defence. I have never heard of it. I have never heard of such a principle.’

Then, Mr. Anthony passed on to another point:

‘Mr. F. Anthony: That those are my submission My Lord so far as that particular part is concerned. Then Your Lordship will see. I have another objection, and that is, Your Lordship will see again that this is not a criminal trial. But there is no indication, there is no indication in those 11 items as to what particular facet of my conduct is being inquired into. When I come to 11A and 11B I will make that submission and a further submission on that. Let me come to 11A immediately. Your Lordships sees 11A(1). It merely says…….. items….11A. events between the 12th and the 22nd of June. 11B-events between the 23rd and 25th of June. That is all.

Chairman: Yes.

Mr. F. Anthony: Nothing could be more beautifully vague than this. Events between the two predetermined dates, what did I do between those two dates. Am I to assume that I gave wrong……wrong advice to the President. That the advice that I gave was conditional by personal by motives of personal power; that the advice I gave was contrary to some rules……that…… what.. what facet of my conduct is involved. Just two predetermined dates… just two predetermined dates and and I do not don't know what thing. What particular facet? What happened between the 22nd and the 25th?

Chairman: Yes.

Mr. F. Anthony: What particular facet is being inquired into.

Chairman: Yes.

Mr. F. Anthony: I mean Sir.

Chairman: See that …… see that it is vague and therefore…..

Mr. F. Anthony: I am saying so, and am unable to reply.

Chairman: That does not mean that you cannot reply to the remaining.

Mr. F. Anthony: No. But then I come to the witness box and all kinds of questions will be asked.

Chairman: Say that it is vague and therefore…

Mr. F. Anthony: I am saying to….

Chairman: All right you are unable to reply that, but that does not mean that you cannot reply to the remaining?

Counsel: Ya, but then I come to the Witness Box and all kinds of questions will be asked: Did you do this, did you… What I am saying is am I not supposed when my conduct is being enquired into. Does not natural justice at least postulate that I should be indicated as to what aspect……

Chairman: Again Mr. Fran Anthony you are assuming something which I have not indicated is the procedure. What I have stated is in respect of these transaction file your statement under Rule 5(2)(a), thereafter the enquiry will be held. You will not immediately be called upon to explain your conduct. You will have an opportunity of cross-examining the witnesses who have to your conduct in the light of the statement made by you. If you are assuming that straightaway when you file your statement under Rule 5(2)(a), you will be called upon to go to the witness box and explain that conduct, that is an assumption for which there is no warrant.

Mr. F. Anthony: My Lord, with great respect that kind of elaborate clarification is not being made I am assuming that the opportunity of defence would mean an opportunity of defence in ordinary language, that is I would get an opportunity to be defending myself, not of making a statement on oath. What I object to is that I cannot be asked now that I have my conduct is being enquired into. I cannot be asked at this stage… the stage of preliminary inquiry was long passed, I cannot be asked at this stage why did you do this, justify this aspect of your conduct. I will do that after my cross-examination at that stage. I will…. my statement will be made in terms of what emerges from the cross-examination.

Chairman: That is all ……..

Counsel: At this stage, not now to ask me to put 5(2)(a) as I said is to travesty of 8B to denude not only 8B but 8C of all content. That is what I am saying at this stage. Now your Lordship will be pleased to see … Now your Lordship here was 11A and 11B…

Chairman: Yes………

Counsel: I dont’ know which facet. What I did to the President, what I said to the President, which aspect of my advice.

Chairman: Yes……..

Counsel: Now your Lordship I pointed this out in my representation dated 2-12-77 and I said in terms that the Commission was not competent to give a finding or an opinion on the declaration of the Emergency. I am saying that and I am repeating it here with great respect. And we said that the declaration of the Emergency was a political act….. was a political act. This decision by the Government is answerable only to Parliament.

Chairman: Yes………

Counsel: Now My Lord the Commission has no power and I am submitting it here to arrogate to itself the authority to determine whether the declaration of the Emergency was an excess and we said this thereto because this would be creating a precedent which will make serious inroads into parliamentary supremacy.

Then Your Lordship should be seized another statement I am making. I do not know, as I say we did not know what aspect of my conduct is being impugned, but at any what aspect of my conduct is being impugned, but at any rate by giving 22nd, 23rd, 25th in my respectful submission the Commission is seeking to do indirectly which it cannot do directly. It is seeking in effect to investigate my advice tendered to the President. For what reason, why? Then Your Lordship will seize I am invoking Article 74(2) and which states in terms that that advice tendered by any Minister including the Prime Minister made to the President cannot be enquired into by the Commission and 11(a) and 11(b) My Lord make it very clear that your Lordships will be pleased to see it is so vague that….

Chairman: Yes. I find it is vague. I will have it clarified…

Counsel: Yes. Then your Lordship will be pleased to be adjudicating on what because I am the target.

Chairman: It is vague, no doubt………

Counsel: The character, the propriety, the content of the advice, the content of the advice. That is what your Lordship, and that Your Lordship in my respectful submission is not empowered to do.

Chairman: I have no desire to go into the question of the content of the advice. I am only… this was intended… It seems there was some mistake in typing, it did not refer to the ultimate declaration of the Emergency. Circumstances which led to the ultimate declaration of Emergency should have been added, a clause has been omitted by mistake.

Counsel: No, no, my Lord I have made it clear what circumstances? Your Lordship has only stated on the 22nd, what about the two years when there was near anarchy in the country? I am coming to that.

Chairman: When you come to that, we may explain. Here as a question of what, whether this is clearly indicative what you are called upon to meet and I agree that a mistake has been committed when it only refers to the events between 12th of June and 22nd of June and events between 23rd and 25th of June 1975. It gives no clear indication as to what you were called upon to do.

Counsel: Now My Lord ……

Chairman: I agree.

In this passage, Mr. Anthony is contending that the summons and the notice are vague. The defect, he says, is that ‘there is no indication in these 11 items as to what particular facet of my conduct is being inquired into’. He refers particularly to items 11(a) and (b), and complains that they are ‘beautifully vague’. Repeatedly he asks: ‘What facet of my conduct is involved ……… what particular facet?’ It is obvious that he want to know what is the ‘conduct’ imputed to Mrs. Gandhi which she is called upon to defend.

However, it is equally obvious that Mr. Anthony is in no doubt that items 11(a) and (b) pertain to the Declaration of Emergency. Otherwise, he would not, in that connection, be referring to the advice tendered by Mrs. Gandhi to the President. Nor would he have invoke Article 74(2) of the Constitution; or said that by giving the dates mentioned in those items ‘the Commission is seeking to do indirectly which it cannot do directly. It is seeking in effect to investigate my advice tendered to the President’. Mrs. Anthony's point is only that he does not know which ‘facet’ or ‘aspect’ of Mrs. Gandhi's ‘conduct’ is in question. To put it simply, he wants to know what is it that Mrs. Gandhi is supposed to have done that is the subject matter of inquiry.

The Chairman ultimately agrees that ‘it is vague’. He says: ‘…It seems there was some mistake in typing, it did not refer to the ultimate declaration of the Emergency. Circumstances which led to the ultimate declaration of Emergency should have been added, a clause has been omitted by mistake’. But, Mr. Anthony immediately says ‘No, No, My Lords………’. It seems that the Chairman and Mr. Anthony are at cross-purposes. The Chairman terminates the discussion with the words: ‘It gives no clear indication as to what you were called upon to do’. Those words are amboguous enough to leave Mr. Anthony with the impression that his submission had been brought home. At any rate, there was no further argument on this point.

The fact, however, remains that whatever the Chairman may have understood or meant, Mr. Anthony's objection was that he did not know which ‘facet’ of Mrs. Gandhi's conduct was impugned by items 11(a) and (b). It was never his objection that he did not know whether those items related to the Declaration of Emergency or something else.

Immediately thereafter, Mr. Anthony read the passage from the Ruling of 21st November 1977 where the Chairman had said: ‘I am only concerned with the declaration of emergency, if it amounts to an excess and not otherwise ……..’ and then submitted:

‘…………that is precisely what we say your Lordship is not empowered to do. The Supreme Court cannot adjudicate and whether the declaration of the emergency was good or bad is a Political Act. That is well settled.’

The discussion then proceeded as follows:

‘Chairman: The circumstances which preceded the holding the declaration of Emergency can certainly be enquired into.

Counsel: With great respect, because in effect what Your Lordship…. the only purpose what I am saying is with great respect Your Lordship will be seeking to do indirectly what your Lordship cannot do directly. Your Lordship will be saying these are the circumstances which motivated the declaration of the Emergency therefore the declaration of the Emergency was an excess…….

Chairman: Yes.

Counsel: Which your Lordship in my respectful submission cannot go into those motives because in effect your Lordship will be not that what your Lordship has said. 'I am only concerned with the declaration of the Emergency, if it amounts to an excess'…………..

Chairman: Yes.

Counsel: The declaration of the Emergency whether it was an excess, an over-excess or under….. whatever it is, cannot be adjudicated upon that is what I am submitting My Lord because it will include …. advice tendered by the ……the Prime Minister. We have said the advice was given, the declaration by the President is there, we say there was the approval by the Cabinet, it was ratified by Parliament. Now for this what is to purpose to say.

Chairman: I am not going into what the President did, I am not going into what the Parliament did, I have no competent to do that….

Counsel: But Your Lordship is going into what the Prime Minister did.

Chairman: I say….. (referring to noise in the half-please) whoever please advised the President in view of the prevailing circumstances to impose an Emergency, I can under terms of reference go into that. That is what I am……

Counsel: With great respect My Lord there I demur strongly because your Lordship will be purporting to arrogate to this Commission a power which ex facie it cannot have. It can't My Lord. With great respect Your Lordship cannot go into content or content on the basis.

Once the President declares the Emergency that declaration is not justiciable. That is what I am saying.

Chairman: I am not going into the declaration, just the circumstances which proceeded the making…….

Counsel: That is advice was wrong. The President was misled, the President was misled.

Chairman: I am not going into the declaration, which is made by the President, the circumstances which preceded the making of the declaration of Emergency.

Shri Frank Anthony: That means that the advice was wrong. That the President was misled that the President was misled. But Your Lordship cannot say that the President was misled.

Chairman: No, I cannot do it.

Shri Frank Anthony: That is in effect what it would-

‘Chairman: Nor can I say that the Parliament was wrong…..

Shri Frank Anthony: And Your Lordship-her is a single integrated political act, however much the present Government may want to pillar, or dawn this lady, this cannot purport to give Your Lordship power to go into the advice she tendered the motives behind it, the adequacy or inadequacy, the motives can never, can never. And that is what precisely Your Lordship require to do because I will be asked what advice did you tender? Now what will she say, she will say I refuse. Your Lordship will say I am drawing an adverse inference against you because you are refusing to tell me what advise you gave to the President. But Your Lordship won't be able to ask her what advice she gave.

Chairman: Well, you can leave it to me and to the Counsel appearing as to what should or should not be asked.’

Thus, the matter is left inconclusive. However, the Chairman has made it plain that he intends to inquire into the advice tendered by Mr. Gandhi, as the Prime Minister, to the President. But, if the Commission cannot say that the ‘President was misled’ or that ‘Parliament was wrong’ what is the good of inquiry into ‘the circumstances which preceded’ the Declaration of Emergency?

So, the arguments went. When Mr. Anthony finished, at page 70 of the transcript, he suggested that Mr. Madan Bhatia, who was assisting him and had ‘done a log of research’, might also be heard. Mr. Bhatia tried to make some submissions, but he was stopped and told that he would be heard when his client Mr. Mukherjee's case was taken up. Then Mr. P.N. Lekhi addressed the Commission, and after that Mr. Khandelwala. It was now nearly the end of the day. Mr. Anthony said he would prefer to reply the next morning as it would given him time to ‘arrange (his) thoughts’. The Commission acceded to the request, and directed the witnesses to be ‘present to-morrow’.

The Proceedings and Ruling of 10th January 1978

Next morning, before Mr. Anthony started to reply, Mr. Madan Bhatia sought permission to make a submission. He said he had been instructed to do so by his ‘client Mrs. Indira Gandhi’. But, the Chairman said: ‘I do not propose to hear two counsels in the same case’. Mr. Bhatia persisted as much as he could. It was of no avail. He was told: ‘Bhatia if you are appearing hereafter for any one else you may supplement the argument at an appropriate stage’.

Then Mr. Anthony was called upon to make his reply. He argued on the same lines as he had done in opening. There is only one passage to which it is necessary to draw attention. While making his submissions about section 8B, Mr. Anthony queried whether the newspapers had correctly reported what the Chairman had said on the previous day regarding the procedure he intended to follow. The answer of the Chairman is important:

‘Counsel: ………… I do not know whether that has been correctly relayed by the Press that although examined on oath, the respondent will not be cross-examined at this stage. I do not know whether that was correct projection of what your Lordship said.

Chairman: So there will not be any cross examination at this stage. The procedure will be similar to the one as is prescribed under order 10 of the Civil Procedure Code, where either the pleadings are not properly reflecting or there are no pleadings before the Court, and, therefore, the court takes upon itself the responsibility of ascertaining what is in dispute.

Counsel: My Lord but here then I take it My Lord that…. and that…….

Chairman: At this stage there will be only to ascertain the defence of what Mrs. Gnadhi has to say and examination on the materials before me.

Counsel: I take it that she will be examined as a witness.

Chairman: She will be examined on oath.

Counsel: That will make her a witness. Let, I think, we should be quite clear about it and one of my basic objections is that the scheme of the Act excludes a person under 8(b) from being put into the position of a witness. Now My Lord, what I am submitting with great respect, as I said in a tri-pass case, there was a principle of fair/play added. On my respectful submission even that principle is now being violated because in my respectful submission fair play would postulate the right to share but (probably, the words are ‘to hear what’) the case is against me. Tested. Now my Lord fair play can never be interpreted to me that I will be heard first. I am coming to the CDM (probably, Order 10) part later. I will be heard first ex parte leave the Criminal Procedure Code the minimal difference but fair play would obviously mean that I should at least because I am being given right to defend myself that I should here at least have the right to cross-examine the people.

The Chairman now invokes Order X of the Civil Procedure Code. He proposes to use it ‘to ascertain the defence of what Mrs. Gandhi has to say and examination on the materials before’ the Commission. Mr. Anthony protests that it would violate the principle of ‘fair play’ that she should be examined first. He says, that since she is being given the ‘right to defend’ herself, the minimum that ‘fair play’ requires is that she should first be allowed to exercise the right to cross-examine. The struggle is all about the question whether she should be examined before she has cross-examined the persons who have deposed against her, or afterwards. Every one's attention is rivetted on that question, and nothing else. This is an important aspect of the background to what subsequently happened.

When Mr. Anthony finished his reply, the Chairman dictated an order. It runs from pages 149 to 165 of the transcript. This order contains the final exposition by the Chairman of his view of the law on the questions which were being agitated before him. With regard to such of them as have also been debated before me, I think it is right to let the Chairman speak in his own words.

The Chairman begins by enumerating the various arguments advanced in support of Mrs. Gandhi's contention that she was not ‘obliged’ to file a statement under rule 5(2)(a). He, then, emphasises that proceedings before a Commission ‘are not proceedings which are either civil proceedings or criminal proceedings’. They are, he says, proceedings ‘for determining the truth’. Therefore, they ‘cannot assume the form of a proceeding of a civil trial nor of a criminal trial’. The fallacy, he observes, in the argument of counsel for Mrs. Gandhi is that proceedings before the Commission ‘if not actually assimilated’ are ‘made similar to a proceeding relating to a criminal trial’. He points out that, from the very nature of a proceeding ‘but’ of the nature of 'inquisitorial'. This latter, he describes, parenthetically, as follows:

‘(When I say ‘inquisitorial’, it means that the presiding officer takes upon himself the duty to ascertain the facts through witnesses after giving opportunity to persons concerned who may be affected by the determination of the facts.)'

In support of his view that the Commission of Inquiry Act adopted ‘the inquisitorial method’ he cites three paragraphs from the Report of the Royal Commission on Tribunals of Inquiry 1966 presided over by Sir Cyril Salmon (now Lord Salmon).

Then the Chairman reads five items of the terms of reference, and explains the reasons for the procedure he has adopted:

‘I had occasion to say more than once in this Commission and especially when considering the applications submitted by Mrs. Gandhi, that on the terms of reference, I had both the power and under Section 8 of the Commissions of Inquiry Act and was under necessity to devise a procedure which would be fair to everyone concerned and within which I would be effectively performing the duties entrusted to me to hold the inquiry. For that purpose, I thought it necessary first to have investigations made through the investigating staff of the Commission. In the very nature of things such investigation could not be complete. It was necessary then to ask persons to come before me and assist me in making the inquiry which was to be made. I made it clear that there was no compulsion upon anyone to come before me and it was only a request to assist the Commission in the due performance of its duties. Many came and rendered such assistance as they could; some refused to come; some came on one or two occasions and thereafter refused to come. I collected the evidence, as I was, under the law, bound to collect the evidence.

Then commenced the inquiry, which I had to hold under the provisions of the Act in respect of some cases………..(6666)

According to this clarification, the inquiry ‘under the provisions of the Act’ commenced only after the ‘invitation’ stage was over. I would interpose here to ask, then what was the nature of the proceedings which proceeded the inquiry? The Commission of Inquiry Act does not envisage the Commission holding any proceeding other than an inquiry. If confers no power to defer the inquiry or prefix to it some other proceeding. The Act does not visualise an ‘invitation’ to ‘assist (the Commission) in making the inquiry which was to be made’. The power ‘to regulate its own procedure’ given to the Commission by section 8 is obviously exerciable only ‘for the purpose of making an inquiry’ because, under section 3, there is no other purpose for which a Commission can be appointed. So, there is no other function it can perform. Therefore, the ‘invitation’ stage was either a part of the inquiry or it was totally outside the Act.

Next, the Chairman deals with Mr. Anthony's submission that rule 5(2)(a) could not be applied as a notice under section 8B had already been issued to Mrs. Gandhi. After quoting the rule, the Chairman deals with the matter at great length:

‘Having regard to the rules, it was obligatory upon the Commission to issue a notice, both under clause (2)(a) and notification under clause (2)(b). A notification was issued generally inviting persons to make complaints under clause (2)(b). But compliance with rule 5(2)(a) could not be had, for the simple reason that under the terms of reference, I did not know as to who are the persons who, in my opinion, should be given an opportunity of being heard in the inquiry. I was called upon to make an inquiry into certain matters but without indicating the involvement of the persons. It was, therefore, necessary for me to identify the persons to whom notice must be given. Before that also it was necessary, in order to maintain some regulation and control over the proceedings, before I was prima facie satisfied whether there had or had not been committed an excess, under the terms of any of the 5 items which are referred to me. It was for that purpose notices were sent to various persons to come before me, whose names appear to have been disclosed on the investigations made by the officers. After holding this inquiry and perusing the statements made before the investigation I thought it necessary when it appeared, that I could form an opinion that certain persons should be given an opportunity of being heard in the inquiry, notices under Rule 5(2)(a) were given. I also was satisfied that if inquiry be held, which I was directed to make in regard to the five items, the inquiry may affect the reputation of certain persons also, or that it would be necessary to investigate the conduct of certain other persons or those of persons, I directed that summons may be issued under section 8(B) of the Act. Notices were thereupon under rule 5(2)(a) and under Section 8B were issued. Pursuant to these notices under rule 5(2)(a) some persons have filed their statements, and they will be scrutinised and considered in determine whether or not, and to what extent, an inquiry should be made under section 8(B) subject to the safeguards under Section 8(C). Certain other persons have declined to file the statements. The principal grounds for declining to file a reply were (1) that the notice was not issued 'as soon as may be after the appointment of the Commission'. I cannot conceive of an earlier stage to issue a notice against any person, who, in my opinion, should be given an opportunity of being heard in the inquiry unless I know who that person is. It was for this reason, the preliminary inquiry was held to pinpoint, to identify persons, who, in my opinion should be given opportunity of being heard. I gave them opportunity to furnish statements relating to such matters by issuing notice. Rule 5(2)(a) makes it obligatory for the Commission to issue the notice. I have no power to dispense with-nor can I accede to the suggestion of Counsel to dispense wit the notice. The notice has in fact been issued and the persons against whom notices were issued are required to file a statement-statement on affidavit in support of the facts stated in the statement. I am emphasising that such a statement has to be made on oath. The person to whom the notice is issued is by Clause 4, which I have set out earlier, required also to furnish a list of documents on which he or she relies, and to forward to the Commission those documents. This is the stage at which the person who in the opinion of the Commission is required to furnish a statement relating to the matters specified in notice. At that stage, there is no question of holding an inquiry. Under the provisions of the Act, the next stage of holding an inquiry on the statement filed before the Commission commences thereafter. At that stage, witnesses would be examined. All would be witnesses for the Commission. If, however, it appears to the Commission that it is necessary to inquire into the conduct of any person or in the opinion of the Commission the reputation of any person is likely to be prejudicially affected by the inquiry, the statute makes it obligatory that notice under Section 8(B) shall be given. It is true that this provision was incorporated for the first time in the year 1971 in the Act. But it is not a new provision because it was a part of the rules framed under the Act and once the procedure was subject to rules framed under the Act it was in substance part of the Act.

In my opinion, there is no warrant for the view that once a notice under Section 8B is issued, there is no obligation on the part of the Commission to issue a notice under Rule 5(2)(a), not that the issuance of the issue of a notice under 5(2)(a) is dispensed with Rule 5(2)(a), and Section 8B operate in different fields. Rule 5(2)(a) deals with a demand from the Commission, in what may be loosely called 'pleading of the person to whom the notice is issued'. Persons who, in the opinion of the Commission, should be called upon to have on that account an opportunity of explaining certain matters which have come to the notice of the Commission at that stage. The person to whom a notice has been issued is required to come and submit his statement, to what is his version of the matters specified in the notice is. It is after the statement is filed, the inquiry commences and it is in the course of the inquiry that the notice under Section 8B will, if at all, be issued. In order, however, that time may not be wasted, (as it is more than four months have elapsed since the commencement of the proceeding, we are at the threshold of this inquiry) it was found necessary by me to issue a notice under Section 8B will, if at all, be issued. In to me from materials disclosed in the evidence at the stage of the inquiry collected by the investigating officers and, further, on the preliminary inquiry held by me, that it will be necessary to inquire into the conduct of certain persons and also that the reputation of certain persons was likely to be prejudicially affected by the inquiry. On that account this notice under Section 8B was issued.

I am unable to accept the argument of Mr. Anthony, who has very strenuously contended, that once a notice under Section 8B is issued by the Commission, there can be no scope for the issue of a notice under Rule 5(2)(a). I am unable also to accept the contention raised by Mr. Anthony that the proceedings before me in this Commission are either of the nature of criminal inquiry or quasi-criminal or they may partake of the nature of an inquiry in a criminal proceedings. The proceedings before the Commission are for determining the truth in the manner provided by the Act. they are not civil proceedings; nor are they criminal proceedings; they are not adversary proceedings’ they are proceedings in which truth has to be determined by the adoption of the inquisitorial procedure which is prescribed by the Act.

It may be appropriate to specifically deal with certain contentions raised by Mr. Anthony with regard to the regularity of the procedure adopted by me and which I propose to adopt hereafter. Apart from the argument that notice under rule 5(2)(a) cannot be issued or in any case the provision of rule 5(2)(a) need not be complied with, it was urged that the appropriate procedure should have been that as soon as a witness appeared before me at the stages of the preliminary hearing and made some allegation which involved Mrs. Gandhi in the commission of some impropriety I was bound to issue a notice under section 8B and I had no option to decline to do so. According to Mr. Anthony, as I understood the argument, after the issue of notice under section 8B there could be no scope for the issue of a notice under rule 5(2)(a). It may, however, be pointed out that on the terms of section 8B, if the Commission at any stage of the enquiry either deems it necessary to enquire into the conduct of any person or the Commission is of the opinion that the reputation of any person is likely to be prejudicially affected by the enquiry, notice under that Section must be issued. But until the opinion is entertained there can be no scope for issuing a notice under section 8B. I am unable to hold that because Mr. T.A. Pai, a Minister of the Cabinet in the former Government, made certain statements which, if true, might have necessitated enquiry into the conduct of a person concerned. I must without going into other facts entertain an opinion that the reputation of the persons mentioned therein was likely to be affected prejudicially and I must issue a notice under section 8B. Section 8B requires that the Commission must consider it necessary to enquire into the conduct of any person merely because some statement is made before the Commission without examining whether the statement having regard to the rest of the evidence is reliable or whether such a statement can be acted upon. It would be impossible for the Commission merely because a statement has been made by some one attributing impropriety to another person that notice under section 8B must be issued. I am seeking only to emphasis this argument that whenever in the course some allegation comes to the notice of the Commission which may appear to be prejudicial to the reputation of a person or which may be taken into account for holding an enquiry into the conduct of any person it is necessary forthwith to issue a notice under 8B, cannot be sustained.

I was also urged that Mrs. Gandhi cannot be called upon to disclose her version of the incidents. It is urged that serious allegations were made against her which after her reputation and the proceedings must from that stage assume the form of a criminal trial or a proceeding similar to or analogous to a criminal trial and, as Mr. Anthony contended, the difference between the proceeding under Section 8B and criminal proceedings would be minimal.'

Chairman goes on to discuss the observations of Justice Mathew in the Introduction to a book on the law Relating to Commissions of Inquiry' by S.C. Gupta. Those observations had been cited and relied upon by Mr. Anthony. The Chairman does not agree with the view expressed by Mr. Justice Mathew. He then continues as follows:

‘Another argument which Mr. Anthony strenuously urged before me is that Mrs. Gandhi cannot be called upon to disclose her version of the incidents referred to in the notice under Rule 5(2)(a), because that could be preempting her defence. In my opinion this contention is based upon a misconception of the true nature of the proceeding and the express provisions made in the rules which have become part of the Act. It may be recalled that under Rule 5(2)(a) the Commission is under a statutory obligation to call upon persons who in the opinion of the Commission should be given an opportunity of being head to furnish to the Commission a statement relating to such matters as may be specified in the notice. And obviously this could not mean that even though a person is to be given opportunity of being heard in an enquiry should also be called upon to furnish to the Commission a statement relating to the matters as may be specified in the notice, such opportunity must be given only in those cases in which there is nothing to be investigated into or inquired into which might be prejudicial to the conduct of the person to whom notice has been issued.

Clause (3) of Rule 5 expressly provides that not only the disclosure shall be made but such disclosure shall be made on affidavit in support of the facts stated in the statement shown by the person furnishing the statement.

I am therefore of the view that in calling upon a person to file a statement there is no pre-empting of the defence because a person called upon to make a statement in an inquiry before the Commission under Rule 5(2)(a) is called upon to submit his version. The Commission has to ascertain the facts and in the ascertaining those facts, assistance of persons who should be given opportunity of being heard is asked for, and the persons who are asked for, the persons to whom such opportunity is given are required to make the statement on oath and also to produce the requisite documentary evidence on which they rely.

It was also contended that Mrs. Gandhi cannot be cross-examined because under Section 8B and Section 8C it is contemplated that the cross-examination is of witnessee only that is of persons who deposed to the involvement of a person against whom an inquiry is being made and not of a person against whom or in whose conduct an enquiry is being made. This argument was sought to be supported on certain grounds (1) that under Rule 5(2)(a) every person notwithstanding the amplitude of the expression used therein still excluded persons against whom some allegation of impropriety was made;

(2) that the terms of Section 8B referred to a defence to be made by a person whose conduct was being inquired into or the reputation of that person is likely to be prejudicially affected;

(3) In terms of 8(C) the right of cross-examination is conferred upon certain persons and by implication it means that the person whose conduct is being inquired into is not a person who can be cross-examined.

I am again unable to accept either of the two arguments. Section 8B confers the basic protection to any person that he shall not be condemned unheard by the Commission i.e. his conduct should not be adversely commented upon by reaching a finding that his version is not true without given him an opportunity of being heard. The finding may be of impropriety of an act which may amount to an offence or anything which might bring him into disrepute. If the Commission thinks it necessary to inquire into the conduct of such a person it is necessary to give a notice under Section 8B and that such a person would obviously be a person against whom there is an allegation made by someone. Similarly, it would be necessary to give a notice to a person who in the opinion of the Commission is one likely to be prejudicially affected by the holding of the inquiry. Section 8C in my opinion defines the contours of a reasonable opportunity of being heard in the course of the inquiry; reasonable opportunity of being heard is not making an oral representation or denying what is alleged but a further right to appearing by Counsel, and no cross-examine witnesses who depose against him to lead evidence, to rebut that evidence and to address the Commission. That does not mean, however, that when the Commission is holding an inquiry into the conduct of any person such a person is immune from cross-examination. The procedure which Mr. Anthony suggested should be followed in a case of the present character is that once a notice is issued under Section 8B there is no scope for the issue of notice under rules 5(2)(a) and all the witnesses on behalf of the persons who have either made a complaint or where there is no complaint, where a reference has been made, on behalf of the Commission, should be examined should be allowed to be cross-examined, by the person whose conduct is under investigation and thereafter such a person may be examined by the Commission but not by Counsel appearing for other persons or even by the Counsel for the Union if it is interested, the State if it is interested or for the Counsel for the Commission. In my opinion there is nothing either in the rules or in the Act which supports this contention. There is not even an indication that such a procedure is intended to be followed unless it is assumed that when conduct is attributed to a person which may ultimately result in some action may take for impropriety if the finding of the Commission is accepted, the proceedings before the Commission itself assume the form of a criminal trial. For such an assumption, in my opinion, there is no warrant.

I may repeat that the procedure has to be devised by the Commission in each case having regard to the nature of the inquiry to be made. And rarely there will be two commissions which would have to follow the identical procedure. There may be a case in which no person may be involved directly or indirectly, but there may be certain matters which would have to be investigated by the Commission. There may be cases in which no person may be named as responsible for any impropriety-there may be named as responsible for any impropriety-there may be a case in which a person to be alleged to have been responsible for improper conduct. In each such case the procedure will be of a different nature and the Commission has to devise a procedure subject to the rules and giving various safeguards provided by the statute to the persons against whom inquiry may be made. In my view, the contention of Mr. Anthony that the enquiry commission should assume a form analogous to a trial in a criminal trial and the departure from the procedure in a criminal trial should be minimal cannot be accepted.

An argument was advanced also before me that Section 8C has an independent existence and that on the terms of that section the person against whom an inquiry is being made is immune from being subjected to cross-examination because he is not a witness. I have dealt with a facet of this argument earlier. Section 8C is not an independent provision; it is provision which gives content to the right of being heard as given by Section 8B. Section 8C is not intended to restrict the scope of the inquiry which has to be made by the Commission or to attribute to our enquiry a form different from the normal form of an inquisitorial proceeding.’

It would be idle to pretend that I understand all that the Chairman is saying. His discourse leaves me with no clear idea as to how he wishes to interpret rule 5(2)(a) and section 8B. So far as I am able to comprehend it, I think, there are many glaring discrepancies in his reasoning.

I will mention only a few.

The drift of the first paragraph causes him to say that at the stage at which a person is required to furnish a statement under rule 5(2)(a) ‘there is no question of holding an inquiry’. He elucidates further:

‘Under the provisions of the Act, the next stage of holding an inquiry on the statement filed before the Commission commences thereafter. At that stage witnesses would be examined. All would be witnesses for the Commission.’

In the next paragraph he says:

‘It is after the statement is filed, the inquiry commences and it is in the course of the inquiry that the notice under section 8B will, if at all, be issued.’

So, this is what he meant by the statement: ‘Rule 5(2)(a) and section 8B operate in different fields.’ To me, the proposition conveyed is that a notice under rule 5(2)(a) can be issued only before the inquiry commences, and the notices under section 8B is issued ‘in the course’ of the inquiry. In that event, it must surely follow that notices under the two provisions cannot possibly be issued simultaneously. But that was exactly what the Commission did both in the case of Mrs. Gandhi and in the case of Mr. Mukherjee.

The Chairman is fully conscious of this difficulty. He justifies his action, in the very next sentence, on the ground ‘that time may not be wasted’; and, also, because from the materials collected by the investigating officers, and the Chairman himself in the course of a ‘preliminary inquiry’, it appeared that it would be necessary to inquire into the conduct of certain persons or their reputation was likely to be prejudicially affected by the inquiry. As to the first reason. I would only say that no amount of desire for expediting a proceeding, however laudable, can legitimise illegal procedure. It is implicit in this reason given by the Chairman that he knew that the procedure adopted was irregular. The construction of the rule and the section that he himself propounds makes that conclusion inevitable.

As to the second reason, if it be right, then notice under section 8B ought to have been issued much earlier. That is what Mrs. Gandhi and Mr. Mukherjee had been clamouring for all along. But, at the stage when the ‘invitations’ were sent the Chairman and said he was unable to identify who was ‘responsible for the commission of the excess’. It is not clear what he means by the ‘preliminary inquiry’. For, as I have already pointed out, there was no change in the state of the record between the ‘invitation’ and the ‘summons’. That factes remained constant. Therefore, the ‘preliminary inquiry’, whatever it was, must have been prior to the ‘invitation’. Since, according to the Chairman, it disclosed materials sufficient to warrant an inquiry into the conduct of certain persons or made it apparent that their reputation was likely to be prejudicially affected, notice under section 8B should have been issued forthwith. Whereas, previously the Chairman declined to issue notice under section 8B because it would make the inquiry. ‘interminable’ he now vindicates the notice issued on the same state of the record.

Another passage which is very confusing occurs later.

The Chairman says:

‘The Commission has to ascertain the facts and in ascertaining those facts, assistance of persons who should be given opportunity of being heard is asked for, and the persons who are asked for, the persons to whom such opportunity is given are required to make the statement on oath and also to produce the requisite documentary evidence on which they rely’.

The concept of affording a person an opportunity of being heard is far removed from compulsion. A person who is given an ‘opportunity’ is never ‘required’ to do anything. It is left to him to take advantage of the opportunity or not. Likewise, asking for ‘assistance’ must be a request and cannot be couched in the language of command. But, in the sentence I have quoted, the Chairman uses all these phrases in juxtaposition as if their connotations were compatible. In my mind, and, I think, in ordinary legal understanding, the various parts of that sentence are violently discordant.

It seems to me that at the root of it all is the Chairman's belief that, under rule 5(2)(a), ‘the person to whom a notice has been issued is required to come and submit his statement’. The alternative form in which he expresses it is: ‘Rule 5(2)(a) deals with a demand from the Commission in what may be loosely called 'pleading of the person to whom the notice is issued' ’. Both the words ‘required’ and ‘demand’ are unsustainable in this context having regard to the meaning and purpose of the rule. The use of those, and similar, words is the source of the distortion in the reasoning.

One obvious inaccuracy is the statement by the Chairman that ‘All would be witnesses for the Commission’. It is obvious form rule 5(2)(a) that the Central Government has the right to produce evidence; and, therefore, witnesses. It is obvious from section 8B that a person to whom notice is given may ‘produce evidence in his defence’, and, therefore, witnesses. Consequently, it does not seem possible to escape the conclusion that the Chairman had got the legal position wrong.

I should also point out that when, in the first paragraph, the Chairman says: ………. nor can I accede to the suggestion of counsel to dispense with the notice', that is not a correct representation of Mr. Anthony's submission. Mr. Anthony had never asked for dispensation: he had contended that since notice had been issued under section 8B, hence rule 5(2)(a) did not apply-which is a very different thing. The question of the Chairman dispensing with the notice did not, therefore, arise.

It is to be noted that the Chairman has made it perfectly, plain that, not only will Mrs. Gandhi be examined, she will also be cross-examined. He says that section 8B and 8C do not mean ‘that when the Commission is holding an inquiry into the conduct of any person such a person is immune from cross-examination'. Those sections, he holds, do not ‘restrict the scope of the inquiry’ or ‘attribute’ to it ‘a form different from the normal form of an inquisitorial proceedings’.

For the rest, insofar as the Chairman repeats, in the passages quoted, what he has said in his earlier orders, I need not repeat my criticisms.

About the question whether he could inquire into the Declaration of Emergency, the Chairman ruled rather briefly as follows:

‘It was then said that I cannot inquire into the declaration of emergency. That statement, in my view, is partially true. I cannot go into the question as to the declaration of the emergency by the President; nor the approval by the Parliament. But on the terms of reference, ‘and especially Item 1 of the terms of reference, it is open to me and it is my duty to go into the question whether circumstances in which advice was tendered to the President pursuant to which a declaration of emergency was promulgated or the manner in which such advice was given amounted to an excess.’

Thus, whilst conceding that he cannot inquire into the ‘declaration’ by the President, nor the ‘approval’ by Parliament, the Chairman holds he can inquire into the question whether the ‘circumstances’ and the ‘manner’ in which advice was tendered to the President ‘amounted to an excess’. This is substantially the same as what the Chairman had said on previous occasions, and my observations are also the same. The question of law thrown up by the ruling of the Chairman remains, of course, to be considered.

There is one other point on which the ruling of the Chairman is relevant. It concerns item 3 in the summons sent to Mrs. Gandhi, First, I must briefly explain the background of that item.

Maruti Private Limited was a company controlled by Mr. Sanjay Gandhi, who is the son of Mrs. Gandhi. In April 1975, some questions were asked in Parliament regarding that company. One of the questions was about the alleged import of machinery by the company. the allegation against Mrs. Gandhi is that, in order to deter four officers from collecting the necessary information, as they were bound to do in the discharge of their official duties she caused false criminal cases to be registered against them under the Prevention of Corruption Act, and had them harassed in other ways. Their houses were searched but nothing incriminating was found. Nevertheless, one was suspended and another transferred. Ultimately, the charges against them could not be proved and were dropped. This is what item 3 is about.

Even according to the allegations, all this happened between the middle of April and the first week of May 1975. The question in Parliament was answered on 16th April 1975. It will be remembered that the Proclamation declaring that an emergency existed was issued by the President on 25th June 1975. According to the notification by which it was appointed, the Shah Commission was required to inquire into excesses, malpractices and misdeeds ‘during the Emergency or in the days immediately preceding the said proclamation ……..’. On behalf of Mrs. Gandhi it was contended that, since the subject matter of item 3 did not fall within those periods, the Commission had no jurisdiction or power to deal with it as it was beyond its terms of reference. On this submission, the Chairman ruled as follows:

It was then said that transactions which commenced before the 25th of June, 1975, cannot be the subject-matter of an inquiry. If, however, a transaction is completed before the 25th June 1975, it would certainly not be open to me to probe that question. But where a transaction is commenced before 25th of June, 1975 or shortly before that and it has continued or its effect has been suffered by anyone during the 25th of June 1975 and the lifting of the emergency, it is in my opinion open to me to go into that question and to determine whether or not there has been any excess committed.'

How far this is a correct interpretation of the notification is a matter I will deal with later.

The order of the Chairman, and the proceedings of that day, end in the following manner:

‘I have heard the arguments of Counsel for Mrs. Gandhi; I have heard the arguments on behalf of the Union, and also arguments advanced on behalf of the Counsel for the Commission. Having carefully considered the arguments, I am of the opinion that the procedure followed be me is the proper and the appropriate procedure to be followed. Further, that Mrs. Gandhi was bound under 5(2)(a), to file a statement as she was directed to, and to file a statement on affidavit and to produce original documents on which she proposes to rely. Not having done so, it is my duty to examine her to determine what her version in regard to these 11 incidents, which are enumerated in the notice under Section 8B is. For that purpose it would be open to rely upon a procedure analogous to Order X of the Code of Civil Procedure.

I may observe, however, that in item No. 11 there is some typographical error and items 1 and 2 do not appear to be complete. A fresh or amended notice will be served upon her with regard to item No. 11.

MR. ANTHONY

Chairman: Yes.

Mr. Anthony: My Lord, would Your Lordship be pleased to allow us till tomorrow to consider Your Lordship's order.

Chairman: In what way? You have heard the arguments. You have heard the order which I have made.

Mr. Anthony: My Lord, my client wanted time, so I am relaying to Your Lordship. We wanted time to consider Your Lordship's order.

Chairman: No, I have made this clear nearly 3 months ago.

Mr. Anthony: Till tomorrow morning, My Lord.

Chairman: All right time is granted till 10.00 A.M. tomorrow.(12035)

Well, I will indicate this that this is, as I said, no civil trial, no criminal trial. If it were a civil suit, I would be entitled to pass a decree against a person against whom a claim is made and choose to file no defence. But not being a criminal case, for not filing a statement called for, does not involve any penalty. But I do propose to use the provisions analagous to order X of the Civil Procedure Code in which a Court, in order to determine what the version of a party is, the ascertain that party's pleading or version and for that I am obliged to examine her to ascertain what the version is, having regard to the attitude adopted in this case.

So, the proceedings go over to the next day.

Pausing here, three points need to be carefully observed. Firstly, the Chairman categorically rules that Mrs. Gandhi is ‘bound under (rule) 5(2)(a), to file a statement as she was directed to’. That is a proposition which not even counsel for the Union has found it possible to support. It is a proposition which imputes to the rule a meaning it cannot conceivably bear, and which nobody could possibly have intended.

Secondly, though the Chairman says that ‘A fresh or amended notice will be served upon (Mrs. Gandhi) with regard to item 11’ the reason for doing so is ‘some typographical error’. The reason is not that the notice is vague because it does not indicate which ‘facet’ of her conduct Mrs. Gandhi is called upon to defend. There is no reference whatsoever to Mr. Anthony's argument, nor any indication that it has been accepted. If it had been accepted, one would expect the Chairman to speak on a different plane, and not that of a ‘typographical error’. At any rate, what the Chairman has in mind is still quite obscure.

Thirdly, notwithstanding that he intimates he will send a fresh to Mrs. Gandhi regarding item 11, the Chairman is proceeding' nonetheless, to examine her in respect of all the '11 incidents'. He specifically says so in the penultimate paragraph of his order.

The Proceedings on 11th January 1978

The 11th January 1978 was a day of high drama before the Commission. After taking his seat, the Chairman inquired ‘Yes, Mr. Anthony, what is the position?’ Immediately Mrs. Gandhi got up and said she would like to make a statement. The Chairman gave her permission to do so.

Mrs. Gandhi's statement was more in the nature of a speech. The first part dwelt on matters of law, but the second part was largely political. Since I am only concerned with the former, and not the latter, I will quote only the first part:

Mrs. Gandhi; Sir, you will forgive my astonishment, when you said yesterday that you were unable to indentify the person whose conduct might be enquired into. To the world as Head of the previous Government whose actions are under enquiry to reinforce the stated positions of the Home Minister with his usual outspokenness, I am presented as the target, I can bring to your notice the questions which this Hon'ble Commission has put to various witnesses in order to show that the whole thrust of their examination was to probe my conduct in regard to the matters which have been specified in the notice served upon me and were designed to prove that civil servants, policemen and politicians were acting only at my behest for everything which might have happened. It is respectfully submitted that this is the first time that a Commission has chosen to lay down its procedure without giving any opportunity of hearing to the persons before their reputations are allowed to be affected. I wish to remind you of the procedures adopted by the Das Commission, the Khanna Commission and concurrently the Mathew Commission to cite only a few examples. In fact I can go back by a century and may be permitted to refer to the first every Commission which was established in England to enquire into the charges of sedition against the famous Irish patriot Parnell, other Members of Parliament and his colleagues.

It is no answer to say that because the Terms of Reference of this Hon'ble Commission had not named any person, no opportunity of hearing was necessary. The very Terms of Reference was clearly directed to determine the alleged excesses attributed to the previous Government which I had the privilege and honour of heading. Before this Hon'ble Commission decided to record oral evidence, it chose to employ its various agencies to collect material. In fact these agencies consisted of officers of the Government of India, including in particular Police Officers and Officers belonging to the Central Bureau if investigation acting under the control of the Home Minister and the Ministry of Home Affairs and placed at the disposal of this Hon'ble Commission. I understand the proceedings before this Hon'ble Commission are judicial in character. However, they are not free from political consequences. The Political leaders in the present Government at the Centre have obvious stakes in securing findings from this Hon'ble Commission to help them against me, my colleagues and supporters. In these circumstances the principles of natural justice demand that you, Sir, as Ex-Chief Justice of India, maintain a respectable distance from Police Officers and members of the Central Bureau of Investigation. However, having got involved, it became necessary that the Commission-the Hon'ble Commission satisfies itself regarding the correctness of the facts or the conclusions arrived at by these officers, I respectfully submit, Sir, that this Hon'ble Commission has not done so.

We pressures have been exercised, what subtle hints have been thrown, what promises have been advanced, what allurements have been offered to the persons whose statements have been recorded in secrecy by such investigating agencies, I am a position to imagine. But these have been allowed to be made the basis of Case Histories prepared and published by this Hon'ble Commission with the full glare of publicity assured. By so doing this Hon'ble Commission lent an air of authenticity to them. It is no comfort to me that Case Histories in law may be regarded by this Hon'ble Commission as only tentative in character. Sir, you know well the mischief of trials by newspapers. The mischief is far greater if the procedure is as one-sided as it has become. This is unprecedented indeed. The Act and Rules clearly contemplate that once this Hon'ble Commission had decided to record oral evidence it has to be recorded in the sequence provided by Sub rule (5) of Rule 5. The manner in which various people have been encouraged or impelled to come before this Hon'ble Commission and make damaging statements against me is reminiscent of the proceedings before the Parnell Commission. Proceedings of this nature, if I remember right, were described as unique. 'The Government had helped them to find their witnesses and so I quote so varied host was never been in London before.'

Retired Government servants cowed down members of the Bureaucracy, politicians with flexible conscience and new found courage, suddenly turning crusaders for truth have thought that the path of least resistence was to throw the blame for everything at the door of a former Secretary to them Prime Minister. Officers whose reputation for integrity may have been bleak have come and presented themselves before this Hon'ble Commission from time to time endorsing previous statements to Investigating Agencies without any fear of cross-examination. In these circumstances there can also be no doubt that while making their statements before this Hon'ble Commission witnesses must be under insedious mental compulsion of having to conform to their earlier statements on oath on pain of being prosecuted for perjury. You did rule on this yesterday, but I do not think that the opinion expressed by you yesterday afternoon was available to them.

However, in a number of cases through persistent repetition of the same question by this Hon'ble Commission, certain witnesses have made statements which go against the whole tenor of their earlier oral statements.

In the Notice I have simply been told that I have to give evidence on the matters specified therein. The earlier part of the Notice states as follows-'And whereas it is necessary to enquire into your conduct in regard to those matters',………….'

The matters which have been specified in the Notice do not contain any reference to my conduct which need be enquired into. Among the principles which Royal Commission laid down to be followed in the friounals (probably Tribunals) of Inquiry one was that before any person involved in an inquiry was called as a witness, he must also be furnished with a statement of allegations. I find no allegations against me communicated by you with the summons. Sir, your own public notification stated that respondents might be called to make oral statements to meet the charges against them. Where are the charges against me? Since I was summoned to make an oral statement, I assumed it was to answer some charges. This Hon'ble Commission has repeatedly stated in the course of arguments that there are not charges against me. If there are no charges against me, I fail to understand why I should have been summoned to make an oral statement. The summons in view of your own Notification seems to be misconceived.

Two of my colleagues have asserted that the disclosure of any information which came to them in their capacity as Ministers amounts to an infringement of Article 75(4) of the Constitution read with the Third Schedule. As the Constitution has so far been understood, the oath of secrecy which is incumbent on a Minister's assuming office is neither the Central Government's privilege nor the privilege of the Minister of Law. It is an obligation which is necessary for the effective functioning of every Govenrment-past, present or future. To ensure every opportunity of frank and free discussions which otherwise would be rendered impossible for fear of disclosure in future. No Government will then have courage to take unpopular decisions on matters where opinion are bound to differ.

I do not wish to keep back any information, but I must not do what I consider I am forbidden to do by the Constitution and some constitutional precedents which are fundamental for every democratic Government. The entire constitutional fabric on which the Cabinet form of Government and collective responsibility are based, would collapsed if any Minister felt free to break his oath, of secrecy and divulged what he under moral and constitutional responsibility ought not to divulge. By impelling former Ministers to break their oaths of secrecy, this Hon'ble Commission has over-stepped its powers, which can be dangerous in the extreme. I need hardly stress the necessity of expecting the privileges against self-accusation. I am told that never has a Judge insisted on the breach of this privilege. You, Sir, have rejected the reliance placed by my Counsel on some of Justice contained only in a text book. Yet, this Hon. Commission itself has relied on the observations of Justice Salmon, which are also contained in a text book. By relying upon these observations and by adopting a different yardstick this Hon. Commission has concluded that the proceedings before if are inquisitorial in character, and that no one is in the position of an accused or complainant and that this Hon. Commission has the power to examine any person on oath irrespective of whether his conduct is a subject matter of inquiry or not involving serious criminal consequences. May be it is for this reason that this Hon'ble Commission has refrained from furnishing any charges. I submit that this view of the Hon'ble Commission formed the basis of the arguments which were addressed in a case before the Supreme Court of the U.S.A.

I should like to comment on the uninhibited disclosure of official records and official acts which have been made before this Hon. Commission. Privilege with regard to these matters were sought to be thrown to the winds by Senator MacCarthy for witch-hunting in the days when he was heading the Investigation Committees in pursuit of Communits. I have been opposed to MacCarthyan in all forums and at all times. Mr. MacCarthy sought protection under cover of the information which he said he was receiving from Government officials, confidants and informants. President Eisenhower applied the correction and ordered that secrecy must be maintained and I quote 'Because it is essential to efficient and effective administration, that employees of the executive branch be in a position to be completely can did in advising with each other on official matters and because it is not in public interest that any of their conversations or communications or any document or representations concerning such advice be disclosed.'

It is, indeed, true that the enquiry before this Hon. Commission is of an unusual type. It has unusual dimentions. The proceedings before this Hon. Commission are proof enough that the present Government has gone out on a hunting spree, combing official records, trying to spin out some case or the other against me or my former colleagues and yet neither you, Sir, nor I know what is the charge I am expected to answer.

In your order yesterday, you observed that to cut short delay, you issued summons to me to appear as a witness simultaneously with a notice calling upon me to file a written statement on oath. I had earlier brought to your notice, the Home Minister's public declaration that summons will be issued by this Hon. Commission and that if I did not appear, a warrant of arrest would follow. And soon afterwards lawful procedure was circumvented to hasten the process of summoning me as a witness.

Sir, you have ordered that since I have not filed a written statement, you are obliged to put me into the witness box under order 10 of the Civil Procedure Code to ascertain facts. However, Shri Pranab Mukherji, who had similar objections, has been told that if he did not file written statement, it would be presumed that he had nothing to say in defence. This shows inconsistency in the Hon. Commission's stand. If according to you, the case regarding Shri Pranab Mukherji, the effect of not filing a written statement is an adverse inference, I do not understand why in my case the Hon. Commission…….

Chairman: If I may tell you that I do not propose to make any distinction between persons who refused to file their statements in reply to the notice under 5(2)(3). Mr. Pranab Mukherji has been informed that I would be justified in raising adverse inference. It does not mean that no other consequences follow.

Mrs. Gandhi: I am only commenting, Sir, on the anxiety shown to put me in the witness box. That a defendant who has declined to file a written statement should be compelled to come to the witness box under order 10 C.P.C., I am given to understand, Sir, is illegal.

With great respect, I should like to make another submission. There is no manner of doubt that in this case, the Government is in the position of a Prosecutor. The political leaders of the present Government are constantly crying from house tops that I was guilty of excesses. In these circumstances exercising their power of appointing a Commission of their choice to hold an enquiry into chosen matters is to find support for what they have to say and repeat in order to sustain themselves in power. I am not lacking in regard for your judicial eminence. But the Commission of this nature is expected to have inquisitorial excellence to suit the policies of the Home Ministry.

So far as the leaders of the Central Government are concerned, they are not interested in impartially of findings on facts, otherwise, they would not so readily have rejected the findings of the Mathew Commission when it found violence in the climate which led to the murder of Shri L.N. Mishra.

You have been pleased to observe that you are unconcerned with what the newspapers write. But Radio and Television are completely in the hands of the Central Government and if all these media continue to create a particular impression regarding my conduct and you say you can do little to prevent it, the matter is certainly of concern to me and I must protect myself against insinuations and character assassination which is the obvious attempt.

To a large number of people within and outside the country, this Commission seems to have been appointed to destroy the effectiveness of those opposed to the present Government.

You have spoken of examining in what circumstances the advice was given to the President. With all due respect, I do feel that this lies in the domain of Parliament and I do submit that such a probe by the Hon. Commission is contrary to the Constitution. It is an insult to the late President and to the August Body, our Parliament. It is a perversion of the constitutional procedure.

Our constitution makers must have had a valid reason for including Article 74, clause 2. If a Successor Govt. reopen these questions directly or indirectly it would make the functioning of nay future Government well nigh impossible.

Now we learn that this Hon. Commission intends to enquire into the circumstances preceding the emergency through the agency of the police. All this pertains to the advice given to the President.

Those who have appointed this Commission have not appreciated that an enquiry of this kind violates the Constitution which binds them by their oath of office. I am sure you, Sir, will not be a party to such violations.'

In the rest of her ‘statement’, Mrs. Gandhi recounted the circumstances which, she said, let to the Declaration of Emergency. She denied that either before or during the Emergency she took any decisions ‘for personal reasons’.

Two or three times the Chairman interrupted her to answer or correct what she was saying. It is significant that he said nothing when she said: ‘The matters which have been specified in the Notice do not contain any reference to my conduct which need be inquired into’. Nor, when she declaimed; ‘Where are the charges against me?’ If the Chairman had accepted Mr. Anthony's contention that the notice was vague as it did not specify the ‘facet’ of Mrs. Gandhi's conduct which was in question, at this point one would have expected him to retort that a notice containing better particulars would be sent or say something of that kind. His indifference to Mrs. Gandhi's remarks shows that he had not accepted Mr. Anthony's submission. He seems to have treated them as useless repetition of what had already been rejected, and he was merely listening with forbearance.

After Mrs. Gandhi had finished, Mr. Lekhi, counsel for the Central Government, stood up and made a counter-speech. He sought to answer Mrs. Gandhi, point by point. In the process, there were acrimonious exchanges between him and Mr. Anthony. The transcript is, here, suffused with bitterness and heat. The Chairman had great difficulty in controlling the proceedings. When Mr. Lehi finally sat down, Mr. Anthony sought permission to withdraw as Mrs. Gandhi had been denied the right to defend herself ‘in terms of Sections 8B and 8C’. He said: ‘The right, in fact, is being given to the prosecution, I am using that term in a loose sense, that is to the people to hear me to tender the evidence’. Then, there occurs the following passage:

‘Chairman: May be, what I had in mind, may be I may have misunderstood the argument.

Counsel for the witness: But then it would mean a misunderstanding of a basic submission which I never made. All that I have asked for, let me get even now an opportunity to be tried in terms of a statutory right, awarded.

Chairman: What you think are the terms of the statute, that is the only difference between what I say and what you say. I have said yesterday as to what the terms of the statute mean, and I am of the view, as I expressed with the limited ability that I have, that you have got to file your statement under Rule 5(2)(a) when called upon to do so.

Witness’ Counsel: Me-Lord, there is a basic difference when I say that it is a complete negation of this right.'

Then Mr. Anthony again asked for permission to withdraw. The Chairman said: ‘Before that I think I would like to say something’. After deploring what had happened and been said by both sides that morning, the Chairman continued:

‘Chairman: ………… No one can say that he is always right, and I don't presume that I am always right, but having said that I think either you may carry out the directions or must take the consequences. And in this case I understood you, Mr. Anthony, to state that you would not be willing to make a statement under Rule 5(2)(a) in the manner provided under rule 5(3), your client would not be willing to do so.

Mr. Anthony: That is right.

Chairman: May I invite your attention to section 5, sub-section (4) of the Act. It is my duty to do so. Apart from drawing any inference that I may be justified in drawing under rest of the evidence, I have the powers which also so conferred by section 5, sub-section 4, the Commission shall be deemed to be a Civil Court and when any offence as is described in section …… 175, 178, 179, 180 or 220 of the Indian Panel Code, is committed in view or the presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, forward the case to the Magistrate having jurisdiction to try the case. And this, in my view, discloses an offence under section 179-your refusal to make a statement in pursuance of the directions given by me I would like your client to tell me as to what her reply to it is.

The Chairman then protested that he should have been told earlier that Mrs. Gandhi would not ‘participate in the proceedings’ so that the trouble and expense of calling ‘as many as 100 witnesses’ could have avoided. Mr. Anthony tried to explain that it was because of the ruling given by the Chairman on 10th January 1978 that Mrs. Gandhi had decided to withdraw, and before that she had every intention of taking in the proceedings. Besides, he said, it would have been professionally improper for him to have told the Chairman that Mrs. Gandhi would take part in the proceedings only if the question of law raised by her was decided in her favour.

From this point on I must quote the transcript in full till the end because every word counts. This is how it reads:

‘Chairman: You know more than what I do.

Mr. Anthony: I am not arrogating anything to myself.

Chairman: Yes.

Mr. Anthony: This is as about comparative knowledge who has more who has less. All I say is that this is the heart of my case. If now what I regard as an opportunity let me hear the evidence I will even give up my request that I should hear them again. That is crucial sir. Let me cross-examine them. Then I will go to the witness box and your lordship may ask me as many questions as possible. That is all I have asked for.

Chairman: Now tell me either your client desires to make any statement under section 179 for refusal to give her evidence.

Mr. Anthony: My Lord my simple submission is this this….

Chairman: Yes.

Mr. Khandelwala: Your lordship should first record the facts constituting the offence, then you would ask Mrs. Indira Gandhi if she has any statement to make as is made on the ………….

Chairman: I will dictate that after the statement is made.

Mr. Khandelwala: And then give her after this act my Lord, given her on opportunity to make a statement as one would do under 342 of the Criminal Procedure Code. Your Lordship will be pleased to see section 5(4) the Commission shall be deemed to be a civil court and when any offence is described in section relevant one is 179 is committed. In the view of presence of the Commission the Commission may, after recording the evidence constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure Code.

Chairman: I will record it, first let me know……………

Counsel for Commission: Your Lordship will first ascertain my lord that she refuses to give evidence on oath an required………

Chairman: The first question that I have asked. Mr. Anthony…….

Mr. Anthony: If your lordship will look at section 179 whoever being legally bound to state the truth on any subject to a public servant refuses to answer any question demanded of it. So, your lordship put-undertake go through that procedure.

Chairman: What would you like to say?

Mr. Anthony: I don't wish to canvass the merits or demerits of 179. All I have to say is this that in the circumstances of this case 179 is not attracted.

Chairman: I want to know whether it applied or not is not a matter with which I am concerned. In my view it applies. What does your client desire to say in that matter. Then after I will state, formally draw up of the statement of facts.

Mr. Anthony: I am not legally bound to make a statement on oath and, therefore, that I be exempted.

Chairman: Section 5(4) of the Commission of Inquiry Act provides that the Commission shall be deemed to be a Civil Court and when any offence, as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts, constituting the offence and the statement of the accused, as provided in the Code of Criminal Procedure, 1898, forward the case to a Magistrate having jurisdiction to try the issue etc. In the present case, the Commission issued a notice under rule 5(2)(a) of the rules framed under the Commission of Inquiry Act. No reply, as required and in the form provided by rule 5(3) has been filed: and in support of the plea that Mrs. Gandhi is not bound to file a statement, as demanded, counsel for Mrs. Gandhi has made submissions at considerable length on the regularity or otherwise of the procedure adopted by me and on which a formal order was dictated by me, which was announced yesterday. Counsel for Mrs. Gandhi has also said that she declines to make, on oath, even an oral statement. In my opinion, prima facie, an offence under section 179 of the Indian Penal Code is committed in the view of the Commission; since Mr. Anthony, appearing on behalf of Mrs. Gandhi, has told me that Mrs. Gandhi refuses to answer any question, which may be asked of her, touching the subject matter inquired into by the Commission.

Counsel for Mrs. Gandhi: Your Lordship may be fair and add that Mrs. Gandhi declines to record a statement because……..

Chairman: I am not concerned with the reason.

Counsel: Your Lordship, what I stated, is quoting me. I did not say, she refuses. The words were that she declines because she is not legally bound.

Chairman: I have got to record the statement.

Counsel: I am making the statement on her behalf.

Chairman: The statement has to be not of counsel but of the party concerned.

Counsel: I am not legally bound.

Chairman: I want to know whether you are willing to make a statement. Are you willing to make a statement on oath in answer to my questions? I want to know whether you are willing to make a statement on oath in compliance with rule 5(2) or not?

Mrs. Gandhi: I decline.

Chairman: Are you willing to comply in the terms of rule 5(2) and make a statement in the form prescribed under rule 5(3) or to make an oral statement in answer to the questions asked by the Commission?

Mrs. Gandhi: I am not willing to make a statement.

Counsel: No. My Lord, the answer was I decline because I am not legally bound.

Chairman: You were asked to file a written statement. I am asking the question 'Are you willing to make a statement orally on oath'?

Counsel: That is the reply my Lord. The reply was that 'I decline because I am not legally bound.'

Chairman: Are you Mrs. Gandhi willing to make orally a statement on oath in regard to matters covered by rule 5(2)(a)?

Mrs. Gandhi: Sir, I said it very clearly, I am declining because I am not legally bound and constitutionally I decline to make a statement. I decline to make a statement. I am not legally bound to make a statement.

Chairman: In view of what I regard as Commission of an offence under section 179 of the Indian Penal Code, I direct that the proceedings be commenced in that behalf. May I ask you again Mrs. Gandhi: You have been called upon to make a statement orally in pursuance of a notice under rule 5(2)(a) of the Rules framed under the Commissions of Inquiry Act, and you have declined to file a statement. Will you just say yes or no?

Counsel: With great respect, My Lord, I have already said that, the facts were put to me and I have said that I decline because I am not legally bound. That is an end to this matter. Now as I said, if some, your Lordship, is to make a complaint, then whatever evidence will be recorded. Then the circumstances that are appearing against me, I will be asked to examine in detail on that….

Mr Khandelwala Adv.: Before your Lordship directs the proceedings. My Lord, at this stage your Lordship will say that having come to this conclusion Mrs. Gandhi should be given an opportunity as one would do under section 342 Cr.P.C.

Chairman: I have recorded the statement.

Mr. Khandelwala: My Lord, that was that she declined to make the statement. This is the conclusion that you have come to. You have recorded the facts. At this stage, I submit my Lord, this is now I understand if my understanding is correct. After recording the facts constituting the offence, and the statement of the accused, as provided for in the Cr.P.C. As I understand it at this stage, there is refusal, so now there being a refusal within the meaning of section 179, what your Lordship has done is to record the facts constituting the offence. At this stage I would submit that your Lordship would….ask her if she has any statement to make with regard to the facts that your Lordship has recorded.

Chairman: The terms of sub-section (4) of section 5 may yield to the interpretation that after the statement is made, I have also to record some form of a statement relating to the facts recorded by me. That is why, as a matter of caution I will record a statement. I do not want to be told ultimately that I did not carry out the requirements of…

Counsel: My Lord, my reply would be the same, after hearing the facts. I decline to make a statement because I am not legally bound. Your Lordship may repeat.

Mrs. Gandhi: Also, Sir, as I said, I feel, I am under oath of secrecy not to make any such statement. I decline that because if would be against my oath of secrecy.

Question to Smt. Indira Gandhi:

Question by Chairman: Under Section 313 of the Code of Criminal Procedure you have been served with a notice under Rule 5(2)(a) of the Rules framed under the Commissions of Inquiry Act, 1952, directing you to file your statement in regard to matters as are specified in the notice. You have not filed a statement and have declined to file a statement. I proposed to examine you orally. Are you willing to make a statement orally? You have said that you are not willing to make a statement. Is that correct?

Answer by Mrs. Gandhi: I am not willing to make a statement because I am not legally and constitutionally bound to make a statement and that making of a statement will amount to violation of my oath of secrecy.

Chairman: In view of the fact that in my view, prima facie, an offence under section 179 of the Indian Penal Code is committed, I direct that the case be forwarded to a Magistrate and a formal complaint be filed in that behalf by the Secretary of the Commission on behalf of the Commission before a Magistrate in the town of Delhi competent to entertain the complaint.’

On careful reading, this portion of the transcript presents some very critical conclusions. Their full significance will emerge gradually.

First, it will be noticed that throughout these proceedings the Chairman repeatedly asks Mrs. Gandhi whether she is willing to make a statement on oath'. Or, he uses other combinations of words having the like effect. Similarly, Mrs. Gandhi repeatedly says she is not willing to ‘make a statement’. Not once does the Chairman say simply: ‘Mrs. Gandhi, please take the oath’ or even ‘Mrs. Gandhi are you willing to take the oath?’ The reference to ‘a statement’ is always there.

If one recalls the antecedent controversy, the reason for this becomes obvious. The dispute was all about the question whether Mrs. Gandhi was bound to file ‘a statement’ under rule 5(2)(a) or, alternatively, make ‘a statement’ orally. The question whether she was willing to take the oath never arose. The record does not suggest that she had raised any objection to being sworn. Hence, no one was thinking of the ‘oath’ as such. It was a word automatically tagged on to the making of ‘a statement’, which was the real, and only, topic of debate. Even the Chairman and counsel were thinking only of the ‘statement’, and not the ‘oath’. That is why they all refer only to section 179 of the Indian Penal Code, and not section 178. When ultimately, the Chairman orders a complaint to be lodged against Mrs. Gandhi it is for ‘an offence under section 179 of the Indian Penal Code’. At no stage did section 178 enter into the discussion. Nor did anyone advert to it.

Secondly, no question on any of the items in the summons was actually put to Mrs. Gandhi. The Chairman merely asked her: ‘Are you willing to make a statement on oath in answer to any questions?’ The two are certainly not the same thing. When, in answer, Mrs. Gandhi said she was ‘not willing to make a statement’ she did not thereby actually refuse to answer a question ‘on any subject’ of inquiry. The question put to her sought to elicit her intention: the words are: ‘Are you willing….’. Mrs. Gandhi's answer: ‘I am not willing…’ expressed her intention in the negative. ‘Willing’ is an adjective which describes a state of mind. Both the question and answer, as framed, bring out only the intention of Mrs. Gandhi, and that is all. But an intention can always change. It cannot, therefore, be said that Mrs. Gandhi was asked a question regarding ‘any subject’ of inquiry and had refused to answer.

Thirdly, it may seem a paradox, but she did answer the question which was actually put to her. She was asked whether she was willing to make a statement on oath, and she answered, No. She never refused to answer that question. One cannot brush aside this argument as a witticism, for it is the literal fact. Mrs. Gandhi did answer the one, and only, question she was asked. The Chairman never reached the stage of asking the questions he intended to put. They lay in the future. Therefore, Mrs. Gandhi never reached the stage of refusing to answer those questions. To the question presently put she did given an answer. This proposition is the counterpart of the one stated in the previous paragraph. Not only did she not refuse to answer any question put, she actually answered the question which was asked.

Fourthly, the ‘unwillingness’ of Mrs. Gandhi to make a statement was not absolute and unqualified. She said: ‘I am not willing to make a statement because I am legally and constitutionally bound to make a statement….’. Presumably, she had in mind the arguments her counsel had advanced. She was not willing to make a statement at this stage. But after she had cross-examined the opposing witnesses she would be willing. Mr. Anthony had said so in so many words. Of course, this was subject to her objection based on the oath of secrecy and other objections she had raised. The meaning of her answer was that she would be willing to make a statement at what she considered the appropriate stage, though not presently. So, the ‘unwillingness’ was not once and for all.

Fifthly, it is at no stage indicated to Mrs. Gandhi that it is sought to examine her only regarding the first 10 items in the notice, and not item 11. The Chairman says: ‘Are you Mrs. Gandhi willing to make orally a statement on oath in regard to matters covered by rule 5(2)(a)?’ Obviously that meant the 11 matters mentioned in the notice. At no time does the Chairman say anything to exclude item 11. The answer which Mrs. Gandhi gave had reference to all the 11 items and must have been so understood by all.

The Proceedings on 12th January, 1978

As scheduled, Mr. Pranab Mukherjee appeared before the Commission on 12th January 1978. He was accompanied by his counsel Mr. Madan Bhata. When we case was taken up, Mr. Bhatia strenuously made some submissions. He argued that it was not possible to hold the inquiry in two stages, and the procedure devised by the Chairman was illegal: that notice should have been issued to Mr. Mukherjee as soon as the case summaries were prepared: and, that the Commission and no power to compel a person to file a statement under rule 5(2)(a). Inasmuch as the discussion unfolds the legal reasoning on both sides, it is worth reading:

‘Counsel: My submission before your Lordship is this My Lord that so far as I am concerned the case history made it very clear that it is my conduct which is going to be the subject matter of inquiry.

Chairman: Supposing it is so, what then?

Counsel: My Lord then I respectfully submit if that was so, that was I respectfully submit was the stage when a notice should have been issued to me under rule 5(2)(a)…………

Chairman: Supposing it was not issued, what then….

Counsel: My Lord I may respectfully submit that all these proceedings. I respectfully submit these proceedings have been recorded in accordance with the procedure which is not warranted in law and are liable to be quashed. This is my respectful submission.

Chairman: All right, I cannot quash my own proceedings. If you have any other forum which may do so, then you may approach that forum.

Counsel: My Lord I submit before your Lordship. My submission before your Lordship is this that I……….

Chairman: I heard arguments on this for nearly hours on this and I do not propose to go over the same ground again.

Counsel: My Lord I am submitting before Your Lordship the other day I also made a request. Your Lordship may be pleased to allow me to intervene, but Your Lordship was pleased to observe that I would have the right to speak on behalf of my client……….

Chairman: On any independent point otherwise I do not propose to allow. There may be hundreds of persons every time coming in and saying, 'now I am going to raise………….'

Counsel: My Lord I am submitting before Your Lordship that I am entitled to submit before your Lordship because your Lordship were pleased to observe on that occasion that your Lordship can change the mind with regard to the same point.

Chairman: I do not propose to change it. I do not propose to change it.

Counsel: My Lord I submit before your Lordship another point if your Lordship were pleased to tell me on that day that Your Lordship would be open to conviction on these very point and your Lordship disallowed my intervention at that stage.

Chairman: I ………. there is no provision for intervention here. I did not want to have two counsels being heard in respect of the same party. An attempt was sought to be made before me which was transparent that two Counsels wanted to be heard. I said I am not going to hear two counsels. Then you said you were appearing before me for Mr. Pranab Kumar Mukherjee. I said if you have got any independent point, I will here you.

Counsel: My Lord I am submitting before Your Lordship that so far as Mr. Pranab Mukherjee is concerned, I do not wish to insist, I am only making my submission, it is my respectful submission. If your Lordship are not pleased to allow me an opportunity to argue these points, then I respectfully submit, then I go to the next point and that is this My Lord: Rule 5(2)(a) Your Lordship had held in that order that Rule 5(2)(a) makes it incumbent for your Lordship to obtain statements in writing from the party concerned. My submission before your Lordship is this, that in the first place as it has already been argued and your Lordship has rejected this submission that it is not open to a party to say that so far as 5(2)(a) is concerned, it does not cover a person who is put in the witness box after, or who is put in the position of an accused, after a notice is served on him submission before your Lordship is totally different, and that is this that Rule 5(2)(a) makes it incumbent on your Lordship to issue a notice to a person who is entitled to be heard in the matter. But it does not empower your Lordship to compel a person to file a statement in writing. Rule 5(2)(a) creates a duty………..

Chairman: I cannot hold his hands and say that you must file it. If you do not file the statement, I will examine him.

Counsel: But this is exactly what I am submitting My Lord. So far as my client is concerned, your Lordship were pleased do writ to him that if you don't file a written statement, it will be presumed that you have nothing to say in defence.

Chairman: That does not mean that I am not entitled to examine him.

Counsel: But My Lord I respectfully submit if after that your Lordship has got the power to put him into the witness box and examine him then My Lord your Lordship's powers to draw an adverse inference comes to an end….….

Chairman: Well I will consider it.

Counsel: This is My Lord my respectful submission.

Chairman: I will consider it as to whether my power comes to an end once I put your client certain question to explain what his version with regard to these instances is?

Counsel: Therefore My Lord I submit before your Lordship that under Rule 5(2)(a) at least your Lordship do not have the power, my respectful submission is this.

Chairman: You said that………..

Counsel: (to put him into the witness box) So far as 5(2)(a) is concerned, this simply clears a statutory duty on your Lordship to give a notice to a person who in your Lordship's opinion is entitled to be heard in the inquiry. It does not give your Lordship power in the first instance to compel a person to file a statement in writing and or in the event of his not filing a statement in writing, or even in the event of his having filed a statement in writing, to compel him to come in the witness box for the purpose of cross-examination or examination.’

The Chairman retorted that ‘The power is under section 8’ Mr. Bhatia thought he meant section 8B. So, the Chairman read out section 8 and said:

‘Chairman: 'The Commission shall, subject to any rules that may be made in this behalf have power to regulate its own procedure'. Here is a case in which I have issued a notice which I was bound to issue. It is contemplated by the terms of the rules that such a party shall file a statement in the manner provided. If a party snaps his fingers and says I do not want to file a statement, I am entitled to make the procedure, consistent with the provisions of the Act and call upon him to make a statement orally before me.’

Mr. Bhatia contended, that section 8 must be read subject to section 8B, and the argument proceeded as follows:

‘Counsel: My Lord I submit before Your Lordship that so far as a person whose conduct is subject-matter of inquiry whose reputation is likely to be affected, for that there is special provision and that is Section 8(B) and Your Lordship may permit me to read Section 8(B).

'If at any stage of the inquiry, the Commission considers it necessary to inquire into the conduct of any person or is of the 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.' I submit before Your Lordship that so far as this type of person is concerned, whose reputation is involved because I respectfully submit that so far as the reputation of a person is concerned, reputation has been recognised by the United States Supreme Court, and even in our country, as part of personal liberty.

Chairman: Yes, America is far away, I am not concerned.

Counsel: My Lord I will submit before Your Lordships, I am coming to that. Reputation is a part of one's personal liberty.

Chairman: I am not concerned with that. I am concerned with the procedure to be followed.

Counsel: I am coming to the procedure My Lord.

Chairman: Will you come immediately to the point of procedure.

Counsel: My Lord I submit, Article 21 of the Constitution says that 'No person shall be deprived of his personal liberty except in accordance with the procedure established by law', and the law in this case My Lord is only Section 8(B) and not any procedure Your Lordship may be pleased to adopt under Section 8.

Chairman: All right, I do not accept that argument. What then?

Counsel: Please your Lordship. Then My Lord I submit that this is my submission; Your Lordship can reject this submission.

Chairman: Yes.

Counsel: Under the Constitution, the only procedure which can be established for the purpose of taking away a person's reputation or affecting his conduct in particular manner is a procedure according to the Constitution which can be
laid down only by Parliament and Parliament in its wisdom has laid down the procedure in Section 8(B) and it says, 'You will be given an opportunity of hearing.'

Chairman: Need I say that I reject the argument. I have heard this argument more than once.

Counsel: If that is so My Lord, then I submit My Lord that Section 8 which provides 'That the Commission shall subject to any rules that may be made in this behalf have power to regulate its own procedure', then this power to regulate its own procedure has to be exercised in such a manner that the procedure No. 1, is fair, and it should be equitably applied to all the persons concerned. If Section 8 is interpreted in the manner that it confers uncontrolled and arbitrary power upon any Commission to prescribe any procedure that it likes to do so, then this Section 8 is ultra vires of the provision of Article 14 of the Constitution.

Chairman: I have no power to go into that.

Counsel: But I am submitting before Your Lordship. Your Lordship will not give such an interpretation to Section 8 which will make it constitutionally invalid.

Chairman: I have given that interpretation and I do not see any substance in the contention that it confers any arbitrary powers upon me.

Counsel: My Lord my submission before your Lordship is this that in one case Your Lordships were pleased to, Your Lordship's in my case, Your Lordships were pleased to communicate to me that if I did not file a written statement adverse inference will be drawn against me.

Chairman: That does not mean I am not bound to examine you. That does not mean that….Yes.

Counsel: My Lord I respectfully submit that Your Lordship may allow me just to read one paragraph and this was a case My Lord, procedure affecting the liberty of a citizen and liberty involving the reputation of a citizen. This was a case where the Government sought to exercise the power to place a person on the list of those who would be treated as communists in the United States, and the Supreme Court of America held that putting a person on such a list amounts to affecting his reputation in the society, and what is the procedure which is to be followed in such a case? Your Lordship may permit me to read this.

Chairman: I am not putting your client in the list of communists.

Counsel: But Your Lordship were going to make it worse for me. My client is a politician and if Your Lordships are looking into his conduct. Your Lordships come to an adverse conclusion, destroying his reputation as a politician and ex-Minister, he will go with Your Lordships, finding with a halter around his neck and he is going to be completely ruined in the political society.

Chairman: Why do you assume that I am making up any decision at this stage.

Counsel: Your Lordship I am not assuming, but I am respectfully submitting that Your Lordship's possible conclusion can have this affect upon my client and for that purpose the procedure has to be a procedure established by law and must be a fair procedure.

Chairman: Whether you remain present or otherwise, whether you are examined or otherwise; whether you refuse to answer questions, this commission will not be deterred from reaching a conclusion on such evidence as is laid before it.

Counsel: I respectfully submit that Your Lordship….

Chairman: So that whether he goes with a halter around his neck as you seem to imagine that he will throughout his life or for short period is no concern of mine.

Counsel: That is why, arriving at a conclusion is Your Lordship's prerogative.

Chairman: May be so.

Counsel: But I submit before Your Lordship that Your Lordship may at least permit me to read this.

Chairman: As I said I am not putting anyone on any list of communists or other class of persons. I want to perform my functions, attributed to me, given to me conferred upon me by the provisions of the Act.

Counsel: I will just read. With Your Lordship's permission I will just read a few lines, two lines.

Chairman: If it satisfies you, you might read if you like. It does not interest me.

Counsel: My Lord, I am just making one point for Your Lordship's consideration. Your Lordship may consider this. 'Applying them to the immediate situation we note that publicly designating an organisation as within the prescribed categories of the loyalty order does not directly deprive any person of liberty or property. Weight must also be given to the fact that such designation is not made by a minor official but by the highest law officer of the Government. Again it is fair to emphasise that the individual's interest is here to be weighed against a claim of the greatest of all public interest. But the significance we attach to the general principles may turn the scale when competing claims appeal for supremacy. Achievement of our civilization as precious as they were hard ones was summarised by Mr. Justice Brandies when he wrote: That in the development of our liberty, insistence upon procedural regularity has been a large factor. It is noteworthy that procedural safeguards constitute the major portion of our Bill of Rights, and so no one now will doubt that in a criminal law, a person's right to reasonable notice of a charge against him and an opportunity to be heard in his defence.'

'The high social and moral values inherent in the procedural safeguards of a fair hearing are attested by the narrowness and rarity of the instances when we have sustained executive action even though it did not observe the customary standards of procedural fairness.'

Chairman: Mr. Bhatia, I do not like to use strong words.

Counsel: My Lord ……..

Chairman: It is wholly irrelevant to the argument.

Counsel: My Lord, I submit before Your Lordship, my submission before your Lordship is this that Parliament in its wisdom has decided that if these proceedings are going to affect reputation of a person which in fact my submission before Your Lordship is that it is his part of personal liberty under the Constitution, the procedure should be as provided by Section 8B and in fact Your Lordship are fully aware in Gopalan's case, the procedure has to be established by law and not by any executive authority and it cannot be delegated even to the Commission or any executive authority even to the Commission or any executive authority and I submit before Your Lordship. Your Lordship have got the power to regulate procedure under Section 8, but Section 8, so far as section, so far as a person who is covered by 8B is concerned, he is protected by Section 8B and any procedure which Your Lordship will be pleased to prescribe under Section 8 which derogates from the procedure laid down under Section 8B will be inconsistent with the section and it will be unconstitutional and it will be ultra vires the provisions of Article 21 of the Constitution.

Chairman: Yes, Yes, what then?

Counsel: This is my respectful submission. Therefore, My Lord, my submission before Your Lordship is this. Next point, it is this that so far as the first stage of enquiry is concerned, presuming that there could possibly be a first of enquiry and Your Lordship were not entitled, were not at all looking into my conduct, although if Your Lordship will give me an opportunity I will show from number of questions which Your Lordship were pleased to put to the various witnesses, it is quite clear from the examination which Your Lordship was pleased to carry in with regard to the various witnesses, that invariably Your Lordship were putting questions, 'Was this my client involved in this matter', 'Was my client involved in this matter'. My submission respectfully is this that even in the first stage of enquiry, so far as the case history is concerned and so far as the examination conducted by this Hon'ble Commission is concerned, leaves no manner of doubt that it was very much my conduct which was subject-matter of enquiry in the first stage. But presuming, My Lord, it is not so because it is Your Lordship's, in Your Lordship's wisdom Your Lordship decided to bifurcate these proceedings into two parts; first is the first stage of enquiry but on Your Lordship's own finding, on own observation in the order, Your Lordship have said in the first stage of enquiry 'I will conclude whether any excess has been committed or it has not been committed. In the second stage of enquiry, I will look into the conduct of particular individuals'. I am submitting before Your Lordship that fairness of procedure, in accordance with the fairness of procedure, I make this submission, that I am entitled to know Your Lordship's conclusions with regard to the excesses which have been committed and the reasons on the basis of which Your Lordship have already come to those conclusions.

Chairman: I do not propose to disclose it.

Counsel: Please, Your Lordship.

Chairman: I do not propose to disclose it.

Counsel: My Lord, that is my submission is. Your Lordship is ….. but, My Lord……

Chairman: I do not want these harangues before me, I am sitting as a Commission determining the facts.

Counsel: But, My Lord, Your Lordship, in wisdom, in Your Lordship's wisdom can reject my submission but today my conduct is a subject matter of enquiry-conduct on the basis of Your Lordship's finding.

Chairman: If you choose not to see what I am saying, not to consider what I am saying, Section 8B and 5(2)(a) are entirely different fields. Rule 5(2)(a) contemplates before any enquiry is started for the purpose of determining your guilt or otherwise or involvement or association with any transaction. I am entitled to call upon you or any person who may appear on the evidence to be concerned in any transaction before me. I have issued a notice requiring the presence of your client and also given him a notice requiring him to file a statement. He has not chosen to file the statement and I do not regard the provisions of the Act as meaning that it is open to a person to whom notice is given to say 'I refuse to come before the Commission; I refuse to make any statement.'

Counsel: My Lord, in deference to Your Lordship's notice my client is very much here. In obedience to Your Lordship's notice. But I am, my ……

Chairman: therefore, your witness is here. I propose to examine him. If he says he doesn't want to be examined, the law will take its course.

Counsel: My Lord, I want to make only one submission and then, Your Lordship, I will stop at that. My submission before Your Lordship is this that since Your Lordship have decided to hold an enquiry into has conduct on the basis of Your Lordship's conclusion in the first stage of enquiry, I am entitled not only to that conclusion with regard to the excess but in accordance with Your Lordship's own judgment delivered in the Supreme Court, I am entitled also to know the reasons on the basis of which Your Lordship have concluded that excesses have been committed. And, next, My Lord, I am also entitled to have the particulars of my conduct which are going to be the subject-matter of enquiry because-I will not cite any judgment-but the Supreme Court has clearly, out own Supreme Court, in their wisdom, have held that even in a department enquiry it is necessary that charges should be particularised against him………..

Chairman: Again I do not see…….

Counsel: The moment I look ………

Chairman: Where is the departmental enquiry, where are the charges? I am ascertaining facts which I am called upon to ascertain the facts.

Counsel: My Lord, if that was so, Your Lordship's own notification has stated that persons will be called to make written statements or make statements on oath viva voce to meet the charges against them.

Chairman: Yes, yes.

Counsel: I presume, My Lord, that there are charges against me because I have been summoned to make an oral statement before Your Lordship. Your Lordship. Your Lordship's notification says so. That notification which I read out before Your Lordship. In that notification it is clearly provided that those persons-Your Lordship may permit me just to read that part of the notification: 'The Commission will ordinarily require respondents to make a statement before it viva voce in reply to the charges made out against him.' I have been summoned by Your Lordship to make an oral statement before Your Lordship with regard to these matters. I am entitled to presume under the regulations published by Your Lordship that there are charges which I have to meet. If that is so, My Lord, I am entitled to know what are the charges against me.

Chairman: At present there are no charges against you.

Counsel: My Lord, that I may submit, My Lord, that this is going to be the second and final stage of enquiry and so far my client does not know that there is also going to be a third stage of enquiry and if this is going to be the second and final stage of enquiry, this is the only occasion when I am in a position to make a submission and a prayer to Your Lordship that at least if I have been summoned as a witness I must be disclosed what is the charge against me.

Chairman: All right. Yes. Mr. Mukherjee, will you just come in here?

Counsel: My Lord, I respectfully submit if Your Lordship are going to reject my all submissions, then Your Lordship may permit me and my client to withdraw.’

The Chairman ignored that request, and went on:

‘Chairman: Will you just come here, Mr. Mukherjee?

(Shri Pranab Kumar Mukherjee comes to the witness chair)

Chairman: Will you swear and state that you will speak the truth.

Counsel: My Lord……..

Chairman: Just please now, will you sit down?

Mr. Mukherjee: I would like to submit that it would not be, I am not constitutionally and legally bound to give statement and not to take an oath. When I appeared before Your Lordship for the first time, I raised the question of oath of office and oath of secrecy and then too I pointed out it should be determined authoritatively, and it has not yet been determined authoritatively

Counsel: My Lord, my client's instructions are clear that he is not willing to take the oath.

Chairman: Will you please sit down now?

(To Mr. Mukherjee) Are you willing to take an oath before me?

Mr. Mukherjee: Not at this stage, My Lord………

‘Chairman: Are you willing to take an oath?

Mr. Mukherjee: Not at this stage, My Lord.

Chairman: Are you willing? You have not filed your statement in pursuance of Rule 5(2)(a) of the Commission of inquiry Rules. You have not filed it?

Mr. Mukherjee: I have not filed it.

Chairman: You have also, are your willing to make a statement orally on examination by me on oath in regard to the matters for which the copies have been given to you?'

In the copies of the transcript placed on record there seems to be a break at this point. So far as counsel and I have been able to make out, it continues as follows:

‘Order of the Commission dated 12-1-1978

Chairman: I am asking you now the question whether you are willing to make a statement on oath, examination by me?

Witness: It is not possible, My Lord.

Chairman: You decline or refuse-whatever the word?

Witness: it is not possible for me to make any statement on oath, My Lord.

Chairman: Are you willing-whether it is possible or not is another question-are you willing to make a statement on oath on examination by me?

Witness: It is not possible for me.

Chairman: You are not willing, I take it. Mr. Pranab Kumar Mukherjee had at an earlier stage appeared before me to assist the Commission on one occasion. Thereafter, he appeared but did not assist the Commission. A notice under rule 5(2)(a) of the Commission of Inquiry Rules has been served upon him requiring him to file a statement in terms of Rule 5(2)(a) and in the manner provided by Rule 5(3). Mr. Mukherjee is present before me pursuant to the summons issued to him. His counsel has raised various arguments concerning the obligation to make a statement under 5(2)(a) by Mr. Mukherjee. His main contention has been that I cannot, because a notice under section 8B has been issued even require Mr. Mukherjee section 8B has been issued even require Mr. Mukherjee to file a statement pursuant to Rule 5(2)(a) or examine him on oath to ascertain his version. I have dealt with the question raised by counsel in great detail on similar submissions which were made before us by Mr. Anthony on Monday and Tuesday. An order has been made in that behalf. Today I have asked Mr. Mukherjee as to whether he has filed a statement in pursuance of the order under Rule 5(2)(a) he has said that he has not filed it. I have asked him whether he is willing to make a statement on oath orally in reply to the questions asked by me to him. He has declined to do so. Mr. Mukherjee has also categorically stated that he refused to take the oath before me because he is not legally and constitutionally bound to make the statement or answer my questions.

In my opinion, prima facie offences under Section 178 and 179 of the Indian Penal Code are committed in my presence.

Chairman: Is the statement dictated by me correct? Do you want to say anything in that behalf?

Witness: Only I want to add that I made the submission, that should be recorded.

Chairman: What is your submission?

Witness: My point is legally and constitutionally, I am not bound to make a statement and the oath of office which I took whenever sworn is as a Minister, is still binding and that constitutional provisions compel me not to disclose anything which I came to know in the capacity of a Minister.

Chairman: Now, are you willing to take an oath first? Are you willing to take an oath?

Witness: Which, Sir, I do not understand.

Chairman: Are you willing to take an oath?

Witness: Before making any submission before your Lordship.

Chairman: Yes; for the purpose of stating what you may state before me.

‘Witness: Sir, I am not making any statement. I am just making a submission. Permit me, I will make a submission. If you don't permit me, I won't make.

Chairman: I only am asking you there are two distinct offences which you are committing in my view. First, by refusing to take an oath as required by me. Second, refusing to make statement on oath when required by me. There are two distinct offences under the Indian Penal Code under 178 and 179 of the Indian Penal Code. That is my view; it may be wrong; it may be right. It propose to send the case to a competent Magistrate to deal with the same. But before that I have to ask you whether the statements which had been recorded here are correct. Therefore, I wanted to ascertain from you whether you have also refused to take oath when required by me.

Chairman: Are you willing to take an oath?

Witness: No, Sir.

Chairman: In my view an offence, offence under section 178 and 179 of the Indian Penal Code has been committed. I direct that the case be forwarded to a Magistrate having jurisdiction to try the offences under Section 178 and 179 of the Indian Penal Code with town Delhi. I direct that the Secretary of the Commission will file the requisite complaint made by me.

Counsel for witness: Sir, I respectfully submit that this statement…….that I am not legally and constitutionally bound to take oath or make a statement should be recorded. It should be place; it should be placed on the record.

Chairman: You can place it before the Magistrate.

Counsel for witness: My Lord, I will take that this is a statement. There is no reason why it should not be recorded.

Chairman: It has been recorded.

Counsel for witness: 'Legally and constitutionally', My Lord.

Chairman: Whatever here he has said, has been recorded.

Counsel for witness: Please, your Lordship’.

Looking back, it seems strangely ironical that the Chairman should say to Mr. Bhatia: Where are the charges?' That is what Mrs. Gandhi had said to the Chairman on the previous day to emphasise that there was nothing against her. Now, the Chairman is saying that to Mr. Bhatia to explain why no particulars can be given of Mr. Mukherjee's conduct which is the subject matter of inquiry.

But, if there no charges, why did the summons sent to Mr. Mukherjee say: ‘….. it appears that it is necessary to inquire into your conduct……?’ Why did it refer to section 8B? How does one inquire into a person's conduct, if there is nothing alleged against him? What is the ‘facet’ of his conduct one will examine? And, when for? Either the summons was wrong or here were charges against Mr. Mukherjee and Mrs. Gandhi which had not been disclosed to them.

Again, the Chairman reiterates his view of rule 5(2)(a). He says it ‘contemplates before any inquiry is started for the purpose of determining your guilt or otherwise or involvement or association with any transaction…….’. According to him, a person to whom notice has been given under that rule is bound to file a statement, and, if he does not, the Chairman says: ‘I will examine him’. The purpose of the examination is ‘to ascertain his version’. Apart from the comments I have already made, there is nothing more that I need to say about the Chairman's view for the moment.

Comparing the proceedings on this day with those on the day before, there are marked differences. The Chairman says very explicitly to Mr. Mukherjee: ‘Are you willing to take the oath?’ Section 178 to the Indian Penal Code is now very clearly present in all that the Chairman says. He explains that ‘There are two distinct offences under the Indian Penal Code under 178 and 179 of the Indian Penal Code.’ In his order directing a complaint to be filed against Mr. Mukherjee he very specifically mentions section 178. I think, there can be no doubt that after the experience of the previous day, the Chairman had examined the legal position more carefully.

However, Mr. Mukherjee is still not asked any questions on the items in the summons sent to him. The only question asked is: ‘……..are you willing to make a statement?’ It amounts to no more than ascertaining Mr. Mukherjee's intention. He did not refuse to answer any question that he was actually asked. And, he answered the question that was put to him.

Like Mrs. Gandhi, the answer which Mr. Mukherjee gives to the question by the Chairman is: ‘….. I am not constitutionally and legally bound to give statement and not to take an oath’. (The second ‘not’ seems redundant and is probably a typing error.) Later, he says: ‘No qualified stage, My Lord’. His answer, too, is not an absolute and unqualified refusal.

The ‘Fresh or Amended’ Summon and Notice

Soon afterwards, Mrs. Gandhi received a ‘fresh’ or ‘amended’ summons and, also, a notice. They were both dated 12th January 1978, So, obviously, they were issued the very next day after she had been ordered to be prosecuted on 11th January. Their contents were exactly the same as those she had received in December 1977, except that these mentioned only one item, which reads as follows:

‘Item No. (xi) Events between 12th and 22nd June 1975; and events between 23rd and 25th June 1975 leading to declaration of emergency. MISA detentions and other arrests on the night of June 25th/26th, 1975 and thereafter.

The only difference between this and item 11 in the earlier summons and notice is that the three sub-items have been combined into one, and the words ‘leading to declaration of emergency’ have been inserted where the second sub-item ended. In all other respects they are the same.

I might recall that in the second ‘invitation’ sent to Mrs. Gandhi, the ‘case’ referred to had the same subject matter and bore the title ‘Imposition of Emergency’.

Mrs. Gandhi was required by the ‘fresh’ summons to appear before the Commission on 19th January 1978.

The Proceedings on 19th January 1978

The Proceedings on 19th January 1978 commenced with the Chairman inquiring from Mr. Anthony: ‘Has your client filed any statement?’ Mr. Anthony sought permission to make a submission, and this how it went:

‘Counsel: If I may make my submission My Lord, just to remind Your Lordship that it is under letter dated 12-1-78 that the Commission served on the respondent a fresh notice under rule 5(2)(a) and a fresh summons under section 4(a) read with Section 8(B)-now My Lord, in that letter had set out your Lordship's observation about some typographical error with ‘regard to some items 1 and 2 of items 11 in the original notice which I had received in respect of all 11 items. My Lord, while Your Lordship had referred to some typographical error with regard to actually to items 11(a) and (b) not items 11(1) and (2) there was no indication at any time by the Commission throughout the proceedings what that typographical error was. My Lord, the words now added reads like this 'leading to the declaration of emergency' that is 11(1) and (2) the dates are given, leading to the declaration of the emergency. Now, My Lord, with great respect those words were always assumed because all the arguments I addressed to Your Lordship at some length were on the basis that those words were implicit in items 11.

Chairman: I did not want to take the risk still for it is being argued hereafter that they were not expressly mentioned.

Counsel: My Lord, I will just go on-I will show Your Lordship, that afterwards if there was any indication, My Lord about that if these, if it was indicated that this was the typographical error, I would have immediately have said that I have had ample notice of that in fact the summary had been given me ample notice. My Lord, My basic objection was this Your Lordships will remember that it was not only in respect of item 11, but in respect of all the 11 items and that was there was no indication. It was vague, not as the papers put it, because I was not aware that those items were leading up to the declaration of emergency.

Chairman: Yes.

Counsel: But because my friend tried to reply to me there, there was no indication of which facet of the respondent's conduct was being impugned, which facet of our conduct which led to the declaration of the emergency. My Lord, I had merely referred items 11(a) and 11(b) by way of illustration and these two items as Your Lordship will remember indicated this 12th and 22nd of June and 11(b) item referred to the 23rd and the 25th of June. There was never any doubt in my mind, My Lord, that those dates have been fixed with reference to the declaration of emergency as I have said the summary made this very clear and therefore for considerable portion of my argument on the 9th and 10th of January, I was directed my arguments besides that the Commission would probably find from these dates that because of personal reasons indicated by these dates that the respondent had brought about the declaration of the emergency My Lord, and one of the complaints I made was that in fact if the Commission could adjudicate on the declaration of the emergency which in my respectful submission it could not, then it should take into account-’

and so on,

A little later, in support of his argument Mr. Anthony said:

‘There was with great respect to Your Lordship, never any suggestion from the Commission that when I was making all these arguments, specifically with regard to 11(a) and 11(b) that I should not make these arguments as fresh notice would issue.’

He reminded the Chairman:

‘…… at that time Your Lordship did not indicate what was not clear, what the typographical error was’

Had he been told, he said, that this is what the Chairman had in mind, he would have ‘waived’ the defect because his objection was entirely different. He said: ‘There was not attempt to answer my objection’. Thereafter, there is the following passage:

‘Counsel: But that is all the objection I made. I never made any objection that I was not aware that this 11(a) and 11(b) referred to the declaration of-the whole argument was that, nothing else.

Chairman: If you like, I will have the proceedings re-checked. But I have a clear recollection that the first objection you raised on reading these 11 items was that the last didn't indicate as to what was the excess committed. On that I said clearly looking at it.

Counsel: Exactly my Lord because I have taken the trouble-summarised typed notes and I repeated them which facet of my conduct was being impugned with regard to the declaration of the emergency. Then in my reply, I replied to my friend's argument that you could look at fraud I said still still, which facet of my conduct in respect of fraud is being impugned.

Chairman: I am not saying you did not argue-

Counsel: That is all I argued-

Chairman: You did argue the question, you also argued, pointed out to me that the notice was defective. I said it is defective.

Counsel: No, no, only with regard to the facet of my-never with regard to this My Lord. Never with regard to this. Then Your Lordship will be pleased to see as I had argued for instance I argued at length about 11(a) and 11(b)-never did your Lordship stop me. Your Lordship's observation was in the beginning-Your Lordship never said that why you are arguing it. I am not dealing with 11(a) and 11(b).

Chairman: Generally I do not believe stopping arguments.’

Here, the Chairman himself says that Mr. Anthony had argued that the notice did not indicate ‘as to what was the excess committed’. That clearly means that Mr. Anthony wanted particulars of Mrs. Gandhi's conduct which was the subject of inquiry, that is, the ‘facet’. Though the Chairman goes on to say: ‘…..you also argued, pointed out to me that the notice was defective’, he does not indicate what, if any, that other argument was, Mr. Anthony is definite that he had argued ‘only with regard to this facet’.

The same thing happens again after another page or two of the transcript, Mr. Anthony is once more emphasising that he never had any doubt that items 11(a) and 11(b) pertained to the Declaration of Emergency.

He says:

‘Counsel: Then I enumerated 12 items which I said if anybody could adjudicate, this should be looked at. So in that the country was in the throes of anarchy during the previous years and those were the circumstances which led to the declaration of emergency. Not these two predetermined dates or four pre-determined dates under items 11(a) and 11(b). Now My Lord I was under no doubt my client was under no doubt as to what 11(a) and 11(b) implied. That is with regard to declaration of emergency. I had referred to 74(2) with regard to 11(a) and 11(b). she had. Now My Lord your Lordship was never under any doubt as to what 11(a) and 11(b) meant.

Chairman: I was not in any doubt, as to what was intended, but the notice was defective and you pointed out to me.

Counsel: What oh with great respect I pointed out vagueness with regard to the facet, I am using my word, facet of my impugned conduct not with regard to the declaration of emergency when Your Lordship told me that I was objecting to that, I would have asked Your Lordship not to insult at the commencement I thought I thought Because I have only argued about the declaration of emergency. Now, My Lord Your Lordship not only never stopped, Your Lordship heard me at great length on 11(a) and 11(b) and Your Lordship gave Your Lordship's ruling on 11(a) and 11(b). No question of it being left now. Your Lordship is not going to determine it now. I am reading from Your Lordships ruling, what I have contended and Pour Lordship found with regard to 11(a) and 11(b). This is what Your Lordship said 'Broadly', This is I am reading from Your Lordship's ruling of the 10th of January, 'Broadly-the arguments are and Your Lordship set out three of the principal arguments then Your Lordship went on and there was such ruling to say this: 'Besides these three principal contentions a number of subsidiary contentions have been raised, 1, 2, 3, 4 that 'I have no power to inquire into the circumstances which preceded the declaration of the emergency and the manner in which advice…….' Now there is Your Lordship, may I use possibly the heart of my argument with regard to 11(a) and 11(b). Your Lordship has no power to inquire into the circumstances preceding the declaration of the emergency. All my arguments were on the assumption that they, 11(a) and 11(b) were circumstances preceding. Then Your Lordship found with regard to 11(a) and 11(b) page 15 of the order that was given to me and it reads like this about 10 lines from the top. Then Your Lordship this is how it reads: It was then said Your Lordship is replying to that contention for and mine. It was then said that I cannot inquire into the declaration of emergency. That statement in my view is partially true. I can not going into the question as to the declaration of the emergency by the President nor the approval by the Parliament but on the terms of reference and especially item 1 of the terms of reference, it is open to me and it is my duty to go into the question whether circumstances in which advice was tendered to the President pursuant to the declaration, that is preceding the emergency, pursuant to the declaration of emergency was promulgated, or the manner in which it was given, amounted into an excess.…. and then you decided against me.’

It will be seen that Mr. Anthony now reads the proceedings of 10th January to show that he did not argue any other question regarding the vagueness of item 111 except about the ‘facet’ of the conduct of Mrs. Gandhi. He says it is an insult to his intelligence to suggest he did not know that item 11 referred to the Declaration of Emergency. The Chairman still does not elucidate what other argument, if any, Mr. Anthony had advanced regarding the vagueness of the notice. Nor does he confront Mr. Anthony with any passage in the proceedings of 10th January.

Mr. Anthony then goes on to make a further point. He says that on 11th January Mrs. Gandhi was never told that she was only being examined regarding 10 items and not 11. It will be remembered that in his order made on 10th January the Chairman had said: ‘…. It is my duty to examine her to determine what her version in regard to these 11 incidents, which are enumerated in the notice under section 8B is’. This is how the argument now proceeds:

‘Chairman: I told you that the notice is defective and a fresh notice will be issued.

Counsel: Your Lordship never told in which manner it was defective. If Your Lordship would have remotely told me, if Your Lordship had remotely told me Your Lordship would have remotely told, that these words were missing, I would have said well why waste Your Lordship's time, Government's money….

Chairman: All right.

Counsel: I was assuming that these words were there.

Chairman: Yes.

Counsel: Then My Lord, in my respectful submission is the determinative effect that I was questioned not with regard to 10 items, I was questioned with regard to all 11 items. There was never any suggestion.

Chairman: I did not question anyone; I wanted to question.

Counsel: And I replied, I am coming to that. I was, Your Lordship never said I want to question; Your Lordship only said: Are you prepared to make a statement.

Chairman: When I said that are you prepared I did not address it to you Mr. Anthony, I addressed your client.

Counsel: Exactly, and I am also using the words Your Lordship has 'Are you prepared to make a statement'. Now nowhere it was remotely suggested to me that 11(a) and 11(b) were not an issue. Never was it suggested to the accused.

Chairman: There is no accused, before me, no accused, there is no accused before me.

Counsel: The person who is being given an opportunity. Then Your Lordship be pleased to remember what the reply of the respondent was. 'Your Lordship will see that she had replied that all the 11 items. She was not legally bound to make a statement at this stage'. That was with regard to all the 11 items. Then she went on.

The statement which the chairman makes: ‘I did not question anyone: I wanted to question’, is very significant. It is direct corroboration of what I said earlier, that the Chairman never reached the stage of asking Mrs. Gandhi or Mr. Mukherjee any questions regarding the items in the notices sent to them. The proceedings never got beyond the ascertainment of their intention. Further, Mr. Anthony's rejoinder: ‘And I replied, …….’, is pregnant with meaning.

It should be observed that, in the passage just quoted, the Chairman does not deny that he did not intimate, on 10th January, 'in which manner' the notice was defective. Nor does he deny that ‘….nowhere it was remotely suggested’ to Mr. Anthony of Mrs. Gandhi that ‘that 11(a) and 11(b) were not an issue’. This comes out even more forcefully in a passage about a page afterwards:

‘Counsel: There was not indication to Mrs. Gandhi, the respondent, that her statement has only been taken in respect of 10 items. She replied with regard to all 11 items that I am not legally bound to make the statement.

Then …….. then very clearly, with regard to 11(a) and 11(b) she replied specifically that I am not bound…. I am bound under the Constitution, she was referring to my argument-74(2), not to disclose my advice to the President with regard to……………She replied specifically to 11(a) and 11(b) in response to notice asking her to make her statement.

Chairman: On a defective notice which I could not consider because when you pointed out, Mr. Anthony, that the notice was defective, or as you said. 'vague', I was bound to take into consideration and when I looked at the notice I found it was plainly defective and I could not go further.

Counsel: Your Lordship never indicated remotely what was the defect.

Counsel: If Your Lordship, these words, if added subsequently, these have meant nothing because the whole argument was that 11(a) and 11(b) referred to the declaration of Emergency.

Chairman: Yes.

Counsel: Yes, if it is with regard to the declaration of Emergency, this is again something which was abundantly clear from the beginning. Then Your Lordship will see that my client was replying to all the 11 items. She replied to specifically 11(a) and 11(b) in her statement. Your Lordship never stopped her. Your Lordship never said that there is not point in your replying to 11(a) and 11(b) because you will get a fresh notice. There was nothing. Then Your Lordship will see, in my respectful submission My Lord, Now to give me a notice in respect of a matter which is, now Your Lordship, that after that, after that I was examined as an accused. I was examined as an accused after I had made my statement……..’

Again, the Chairman does not deny that Mrs. Gandhi was never told on 11th January that she was not presently going to be examined on item 11. Again, he does not deny that on 10th January he never indicated the defect in the notice that he had in mind.

Ultimately, Mr. Anthony summed up his submission and gave vent to the apprehension in his mind:

‘Counsel: I have made this submission and I have already indicating in all my arguments the series of circumstances showing bias from the very beginning in the Commission, not giving me an opportunity to defend myself and while Mr. Lekhi has ample opportunity as Government Counsel who has no case to present. He has the opportunity to participate in the very beginning. Now My Lord, what I am submitting is this, having already questioned having already decided 11(a) and 11(b), having already ordered my prosecution and my respectful submission on all the 11 items including 11(a) and 11(b). Your Lordship tells me.

Chairman: Yes.

Counsel: And now purport to prosecute me the second time because Your Lordship has already become a prosecuter with regard to all the 11 items. And now in purporting to prosecute me as fresh in respect of 11(a) and 11(b) where I think everything has already been decided, Your Lordship, a Prosecutor and a Judge. Now My Lord there is one apprehension and I take it myself when I read the newspapers. There is one paper which seems to gie statement and inspire probably to one particular….

Chairman: Mr. Anthony, as I said last time, I am not concerned with these papers.

Counsel: Your Lordship has no control.

Chairman: I have no control over these newspapers what they say or what they do, or not say, is not my concern.

Counsel: In my opinion, My Lord, it is not correct that Your Lord was now going to ask me to take an oath…but my apprehension is that, my apprehension should be first cleared that real purpose Your Lordship may not have that purpose in which is, Your Lordship is being assisted by Secretary, policemen also. The real purpose to get at again ant that matter has already been decided on the (blank) that my prosecution has already been ordered and Your Lordship had given an opportunity for a fresh section to be added to 178, probably 178 to be added. Later being realised that 179 has no application so let us take this opportunity, give a fresh notice and my Lord if Your Lordship asks me with regard to the oath, all I can say with regard to 178 that the Commission is not legally competent, specifically it is not legally competent to require that I shall bind myself by oath for further information because with regard to item 11 the Commission is now in the context….'

Chairman said nothing, and called upon Mr. Lekhi to reply.

After hearing Mr. Lekhi for a while, the Chairman through that what Mr. Lekhi was saying was not relevant. In order to focus Mr. Lekhi's attention on the question issue the Chairman said:

‘Chairman: Mr. Anthony's argument is that no fresh notice should have been issued because an inquiry was made in regard thereto and my earlier orders covers the order which have been made.’

Even now the Chairman does not say that item 11 was not the subject of inquiry on 10th January.

Mr. Lekhi continued for a little longer, and then it was the turn of Mr. Khandelwala. He read from the proceedings of 10th January the passage from Mr. Anthony's argument about there being no indication of the ‘particular facet’ of Mrs. Gandhi's conduct which was ‘being inquired into’. I have already quoted that passage. Mr. Khandelwala also read passages from the order made by the Chairman on 10th January. Those passages, I have also quoted Mr. Khandelwala then concluded:

Khandelwala: ………….What my lrd, can be the grievance of Mr. Anthony I altogether fail to see in this matter. Everything is so clear on the record it is he who has initiated the objection. Your Lordship has agreed with his objection and now he complains because your Lordship agreed with his objection and sent the notice. What more could have been done. The entire proper course has been adopted.

On that note, Mr. Khandelwala finished.

Understandably, Mr. Anthony was livid. This is apparent from the fury of his reply:

‘Anthony: I won't take much time as Mr. Lekhi not unexpectedly he tried to deliver a political harangue and he was unable to deal with the point which your Lordship put to me. And that Mr. Khandelwala has sought to deal with by my respectful submission distorting the facts. In reading the record he did read about 5 times my objection. And now discloses in unambiguous language which facet of my conduct is being impugned that was the vagueness……..

Chairman: As I told you………

Anthony: With great respect my lord my friend has accused……

Chairman: Vague notice is defective and therefore I immediately agreed with you that this notice cannot be utilised as notice.

Mr. Anthony: As I say, he distorted to record and deliberately distorted what I said. I was contending for vagueness with regard to which facet of my conduct and he says that the court accepted but court did not do anything of that sort. The court merely said vagueness. The court never said this. This is what Mr. Khandelwala forgotten and deliberately distorted that I had said please. He deliberately distorted it that the court agreed with me that it was vague because the facet of my conduct was not expressed. That is where he indulge in a deliberate distortion and gone on to come to this frivolous conclusion, apart from frivolous objection.

Chairman: All right.

Mr. Anthony: I am repeating this because my friend was not in picture at any time and he never understood it. But what my friend……my friend's gist is this. He says, Your Lordship accepted my argument. What vagueness? Your Lordship did nothing of the sort. Your Lordship merely accepted my argument of vagueness and left it at that and said it was a typographical error. If your Lordship had said, yes, Mr. I am accepting your submission that it is vague before it didn't indicate which facet, then certainly I would have had no objection to this notice which Your Lordship did nothing of that kind. Your Lordship merely talked about some vagueness.

Chairman: I said that notice was defective.

Mr. Anthony: Your Lordship, you talked of vagueness, vagueness. Absolutely vague. The vagueness was absolutely vague. It was not being given to me.

Chairman: Whatever adjective you may use; either it is beautiful vague or deliberately vague or absolutely vague, it is a vague notice and therefore defective. On that no proceedings can be taken.

Mr. Anthony: Because Your Lordship is adopting the distorted argument of my friend.

Chairman: How do you assume that?

Mr. Anthony: It is distorted.

Chairman: On what do you assume that I am accepting his arguments.

Mr. Anthony: Because Your Lordship is saying, that is what my friend is saying; Your Lordship accepted my argument. Your Lordship did nothing of the sort. My argument was vagueness re facet and I spelt it out. My friend, deliberately, deliberately overlooked that. I spelt it out in my reply and I spelt it out which facet fraud on the President, fraud on the Cabinet, fraud on Parliament. Did your Lordships remotely say that it is vague because one of these facets had not indicated. No, If your Lordship has said that, what my friend Mr. Khandelwala has contended for would be right. But deliberately, as I say, he is distorting it and saying that I have, Your Lordship has accepted this my argument. Your Lordship never accepted my argument. Your Lordship's observation.

Chairman: Mr. Anthony, you have been at the Bar for a long time. It is better to avoid these personal abuses on either side.

Mr. Anthony: With regard my friend-I didn't expect it from him. He accused me of misleading the court.

Chairman: No, no. He did not say like that.

Mr. Anthony: In fact, he said this my argument. He said this. I didn't want to intervene as my friend would have been in the rudeness in fact, he has said it was on my submission that Your Lordship accepted my objection. Nothing of the sort. It is deliberate distorting from Mr. Khandelwala to say that. My contention was it appeared in ten places, give this vague because you were not indicating the facet. As the facet indicated now. If Your Lordship have said now. I am giving fresh notice because I am now saying that Mrs. Gandhi's conduct this conduct is impugned. That it was a fraud on President, it was a fraud on Parliament, it was a fraud on the Cabinet.

Chairman: That‘s not right, Mr. Frank Anthony, I did say in an order which was formally dictated and recorded: 'I may observe, however, that in item No. 11, there is some typographical error and item 1 and 2 do not appear to be complete. A fresh or amended notice will be served upon her with regard to it.' And you were present. Immediately you could have said that I waive all notice with regard to the form of the notice, Instead of that………..

Mr. Anthony: My Lord, with great respect, Your Lordship haven't again understood me.

Chairman: I do not know. I plead inability.

Mr. Anthony: Because Your Lordship's observation is as vague as………

Chairman: As what I said earlier.

Mr. Anthony: Typographical error.

Chairman: Yes.

Mr. Anthony: I will not want to waive anything. If Your Lordship had remotely indicated that it is vague only because of these words not being therethen it preceded emergency and I say what is this exercise for?

Chairman: Yes.

Mr. Anthony: I never said this incident proceeding emergency. I said there is no question. That is why the vagueness I am complaining about. That is what Your Lordship has been trying to understand and which my friend has been saying deliberately.

Chairman: If you choose now to understand what I said I am going to issue a fresh or amended notice at that stage, you could have got up and said my objection is not to the form of the notice but as to the circumstances in regard to which the notice has been issued and therefore I waive the objection as the form of the notice. You could have told me that instead of wasting this time.

Mr. Anthony: Your Lordship may have gone it. Your Lordship probably have more capacity than I have but by putting it hindsite, is much cleverer, I said it ten times before. I said in ten times if I am right. What was my objection? In fact, I told Your Lordship what my objection was before your Lordship's observation and afterwards. That was to the vagueness of the fact. And this does not clarify at all and when I got the notice. I said it is an insult. This is we were all aware of it and including the court and the main point was this that my friend has said that I argued vague and distorted the position. Mr. Khandelwala that I have only argued with regard to 5(2)(a)(b) for certain but but I argued with regard to 11(a) and 11(b) Your Lordship has been choose to spell it specifically in that item 4. My argument was with regard to 11(a) and 11(b). Your Lordship was pleased to deal with specifically to reject my argument with regard to 11(a) and 11(b) not on the ground that a fresh notice is to be issued but on the ground that there is no content in my argument with regard to 11(a) and 11(b). Your Lordship after that I replied to all these items. I replied specifically with regard to 11(a) and 11(b). Your Lordship's prosecution was with regard to 179 to deal with all matters. My simple argument Your Lordship has ordered prosecution with regard to all the 11 items. Your Lordship cannot now partly by putting these words ‘order for fresh prosecution.’

I am afraid the remark of the Chairman addressed to Mr. Anthony: '…… I immediately agreed with you that this notice cannot be utilised as notice' does not reflect the true position. It is patent from the record of the proceedings of 10th January, and the order made by the Chairman on that day, that though the Chairman agreed that the notice was ‘vague’ he did not reach that conclusion on the ground urged by Mr. Anthony. He did not touch Mr. Anthony's argument on this point in his order. Mr. Anthony never, for one moment, suggested that he did not comprehend that item 11 related to the Declaration of Emergency. As he said afterwards, it was an insult to his intelligence to think he did not understand that. No doubt the Chairman and Mr. Anthony were both agreed that the notice was ‘defective’ because it was ‘vague’. But they were not of one mind on the reason for that conclusion. On that, they were poles apart.

Mr. Anthony then sat down, and after a short submission by Mr. Lekhi the proceedings continued as follows:

Chairman: Yes, just take it.. On the 19th of December, 1977 the Commission issued a notice to Mrs. Indira Gandhi. The second paragraph of that notice reads as follows:-

'You are hereby directed under Rule 5(2)(a) of the Commissions of Inquiry (Central) Rules 1972 to furnish to the Commission a statement relating to the following matters within ten days of the receipt of this notice.'

Item No. 11 of the notice read as follows:

'(a) events between 12th and 22nd June, 1975;

(b) events between the 23rd and 25th June, 1975;

(c) MISA detention and other arrests on the night of June 25 and 26, 1975 and thereafter.'

There was a very long and detailed argument on the various facts of the notice before me. On the 9th and 10th of January, 1978, Mr. Anthony, who appeared on behalf of Mrs. Gandhi, contended, inter alia, that the notice was-to use his own words-'beautifully vague' in regard to sub-items (a) and (b) of item 11. On perusing the notice, I immediately expressed the opinion that the notice was vague and therefore defective. After hearing arguments of Counsel at considerable length on the question whether I could hold an inquiry on what the President did or the Parliament did in regard to circumstances and transactions which preceded it, I made it clear that I have no jurisdiction to question the authority of the President or the Parliament or to express any opinion in regard thereto. I further observed that I was entitled to go into the circumstances which led to the tendering of the advice to the President on which there was a declaration of emergency. After the close of the arguments, I dictated in open sitting of the Commission the order which records at page 15.

'It is then said that the terms of reference are vague. Again I have no power to alter the terms of reference. The terms of reference have to be the same as they are. If I cannot perform my duty under the terms of reference. I can certainly say that I am unable to find the facts in regard to any item which is referred to me, but on that ground, I cannot say that I am not going to look into the evidence for the purpose of determining whether or not on the terms of reference some excess is disclosed.

It was then said that I cannot inquire into the declaration of emergency. That statement in my view is partially true. I cannot go into the question as to the declaration of the emergency by the President: nor the approval of the Parliament but on the terms of reference, and especially item 1 of the terms of reference, it is open to me and it is my duty to go into the question whether circumstances in which advice was tendered to the President pursuant to which a declaration of Emergency was promulgated or the manner in which such an advice was given amounted to an excess.'

I also stated in the last paragraph of my order as recorded:

'I may observe however that in item No. 11 there is some typographical error and items 1 and 2 do not appear to be complete. A fresh or amended notice will be served upon her with regard to item No. 11.'

Thereafter Counsel for Mrs. Gandhi asked for an adjournment of one day to enable Mrs. Gandhi to consider the effect or operation of my order; and time was granted, on the next day, Mrs. Gandhi appeared before me and declined to make a statement, the terms of which has been recorded duly in my order. It is true that an argument was advanced before me, whether I was competent to go into the question whether the declaration of the emergency by the President or approval could be gone into by me. It was also urged that it was not open to me to go into any questions, relating to the declaration of emergency. I rejected a part of the argument in the paragraph which I have set out earlier. Pursuant to the order which was made by me on the 10th of January, 1978, a fresh notice has been served upon Mrs. Gandhi and she is present before me today. It is now urged that the only argument advanced at the Bar was that the notice was vague, but, it was not indicated by me and I accepted the argument that it was vague but it was not indicated by me as to in what manner or in what particular it was vague. If it was intended, then to issue a fresh notice on the ground of vagueness, Counsel says that he would have waived the notice. In my opinion, once I ruled that the notice was vague and therefore defective, there could be no question of waiver of the defect because this is the formal notice which is required by law to be issued and, therefore, I directed accepting the argument raised before me that the notice was vague that a fresh notice should go.

Mr. Anthony: My Lord, with great respect, my argument was not vagueness, generally, my argument was which facet of the conduct. Your Lordship never accepted that.

Chairman: But you will alter my words?

Mr. Anthony: But to put that in……….

Chairman: I have said that.

Mr. Anthony: That is not the correct projection of what I said, Your Lordship did not accept any contention of vagueness.

Chairman: You had just gone out or possibly you are not following what I said. In my opinion, on the contention raised and accepted by me, it was necessary for the Commission to issue a fresh notice because the earlier notice was partially defective. Even if Counsel had waived the notice, waived the defect, in my opinion, I was bound to issue a fresh notice on item No. 11. Such a notice has been issued and no objection has been raised to the validity or regularity of the notice except the earlier contention which was raised, viz., that I have no competence to go into the question of what preceded the advice given by Mrs. Gandhi to the President pursuant to which a declaration of emergency was made. The Commission has also issued summons under Section 8B of the Commission of Inquiry Act. Since the earlier notice was defective, it was directed that a fresh or amended notice under Rule 5(2)(a) should be issued. It has been issued and since a summons under Section 8B as also it is necessary to issue has been issued. I am unable to agree with the contention raised by Mr. Anthony that I have dealt with the matter in my earlier order which was delivered on the 10th of January, 1978. If the notice was defective and it was made clear to the parties concerned, there can be no question of considering the matter and dealing with a matter on a defective notice. Unfortunately, Counsel has suggested some sort of a bias in the Commission. I believe it is a matter of participating in some political campaign on behalf of his client. This Commission is concerned with determining the facts pursuant to he order of appointment made by the President. The Commission is not concerned with either its political implications or its political consequences and to suggest that the Commission is biased in any manner is wholly improper for Counsel to do so. I trust that the Counsel will heed this advice given.

Mr. Chairman: May I, Your Lordship, observed that I had raised the question of 'beautifully vague'. With great respect, Your Lordship did not refer to the heart of my argument that it was vague because the facet of my conduct that was impugned was not indicated. That was the vagueness I complained of. Then Your Lordship has said that I had not impugned the notice except on the ground that the proclamation of the emergency could not be gone into. I impugned the notice in my argument on the ground that 11(a) and 11(b) had been argued, that had been decided by your Lordship. I replied to the question and I had been prosecuted under Section 179. Now My Lord, I must reply Your Lordship's observations with regard to my remarks or submission with regard to bias. I did not mean bias in the political sense. I used it as it is well-used well-known in the catena of authorities of this court and in the United Kingdom.

Chairman: There are no facets of bias.

Mr. Anthony: There are facets of bias and the question of bias that I am concerned with is this that as I say that the matter has already been dealt with. I had already been questioned, My Lord. I had been already prosecuted My Lord and it is excessive bias in law to attempt and prosecute me on a matter that has already been decided. Nothing to do with any polities.

Chairman: Yes Mrs. Gandhi, will you just come in the witness box?

Mrs. Indira Gandhi: I have already made my statement with reference to item 11 and you, Sir, have already passed an order on it, and the order has…

‘Chairman: (asking Mrs. Gandhi) Will you please come to this chair?

Mrs. Gandhi: I repeat, Sir, that the Commission is not legally competent to require that I shall bind myself by oath to solemnity.

Govt. Counsel: This is something, my Lord ………

Mrs. Gandhi: I am not legally and constitutionally bound to make a statement ………….

Chairman: Yes, will you please come to this chair? Will you please come here?

Mrs. Gandhi: No, Sir, I have stated very clearly my views that I have already made my statement with reference to item 11 and you have already passed an order on it and have ordered my prosecution.

Chairman: Your Counsel has said all that. I do not want to………..

Mrs. Gandhi: I have said that the Commission is not legally competent to require that I shall bind myself by oath or solemnity.

Mrs. Gandhi: I am not legally and constitutionally bound to make a statement before you.

Chairman: Will you come to this chair?

Mrs. Gandhi: No, Sir.

Chairman: Are you willing to take an oath and make a statement in regard to my notice under Rule 5(2)(a).

Mrs. Gandhi: Sir, I do not consider myself legally and constitutionally bound to do so.

Chairman: Are you willing to take an oath?

Chairman: Are you willing to tell the truth on or in respect of this notice issued under Rule 5(2)(a)?

Mrs. Gandhi: I shall not answer any further questions.

‘Chairman: Right. Just read out the record. The record made by the Commission will be read out and just tell me whether it is correctly recorded. Only this much portion about the questions. Yes.

(The portion relating to questions-answers by Chairman to Mrs. Gandhi read out.)

Chairman: Mrs. Gandhi has been asked by the Commission to take an oath and to state and to make a statement in reply to the questions that may be asked in respect of the notice issued under Rule 5(2)(a). Mrs. Gandhi has also said that she refuses to answer any questions. In my opinion an offence has been disclosed as having been committed by her under Section 178 and 179 of the Indian Penal Code in my presence. I direct that the case be forwarded to the magistrate having jurisdiction to try the offence under Section in 178 and 179 of the Indian Penal Code within the town of Delhi. I direct that the necessary complaint will be made in this behalf and the Secretary of the Commission will also take steps to forward the papers to the learned Magistrate.’

This time Mrs. Gandhi is very specifically asked: ‘Are you willing to take an oath?’ And, in the order directing a complaint to be lodged against her, section 178 of the Indian Penal Code is now very noticeably present. She is also separately asked: ‘Are you willing to tell the truth ………’ No similar querry was made from her on 11th January 1978.

There is no doubt that, on this occasion, Mrs. Gandhi has refused to be sworn. She says, she is not ‘legally or constitutionally bound to take the oath.’ She is still not asked any question on ‘item 11’ in the notice served on her. She is only asked: ‘Are you willing to take an oath and make a statement in regard to any notice under Rule 5(2)(a)’. Her answer is the same: that she is not ‘legally and constitutionally bound to do so’.

Now, reviewing the proceedings before the Commission, there are some observations I must make. Firstly, the fact is quite plain, despite all the obfuscation, that Mr. Anthony's argument, that the notice was vague because it did not indicate which ‘facet’ of Mrs. Gandhi's conduct was the subject of inquiry, was never accepted by the Chairman. Let me start from the beginning. On 9th January, Mr. Anthony opened his submission about vagueness as follows:

‘Mr. F. Anthony: That those are my submissions My Lord so far as that particularly part is concerned. Then Your Lordship will see. I have another objection, and that is, Your Lordship will see again that this is not a criminal trial. But there is no indication, there is no indication in these 11 items as to what particular facet of my conduct is being inquired into. When I come to 11A and 11B I will make that submission and a further submission on that. Let me come to 11A immediately. Your Lordship sees 11A(1). It merely says …….. items……11A. Events between the 12th and the 22nd of June. 11B events between the 23rd and 25th of June. That is all.

Chairman: Yes.’

It is manifest that Mr. Anthony's objection that the ‘facet’ of Mrs. Gandhi's conduct was not indicated was in respect of all the 11 items. He took up item 11(a) and (b) only by way of illustration. In the course of the argument the Chairman agreed that the notice was vague, but did not elaborate any further. Thereafter, there was no further argument addressed by Mr. Anthony on that point.

In his order of 10th January, the Chairman does not at all deal with Mr. Anthony's argument about the ‘facet’. It is merely said in the last paragraph of that order that a ‘fresh or amended’ notice will be served on Mrs. Gandhi ‘with regard to item 11’. The reason given is a ‘typographical error’.

The notice dated 12th January 1978 served on Mrs. Gandhi merely makes it express that item 11 relates to the Declaration of Emergency. It gives no indication of the ‘facet’ of Mrs. Gandhi's conduct which is the subject of inquiry.

On 19th January, Mr. Anthony is told by the Chairman and later by Mr. Khandelwala, that his objection was accepted, and that is why the ‘fresh or amended’ notice was issued. Mr. Anthony protests that he never argued that it was not clear whether item 11 referred to the Declaration of Emergency or something else. Neither the Chairman nor Mr. Khandelwala suggest that he did argue any such point. Mr. Anthony says he argued about the ‘facet’. Again, no one suggests that he did not. The ‘fresh or amended’ notice does not meet that argument. It makes no attempt to indicate any ‘facet’ of Mrs. Gandhi conduct. So, obviously the notice could not have been issued because Mr. Anthony's argument was accepted. Yet, Mr. Anthony is told that it was. Throughout the proceedings of 19th January, neither the Chairman nor Mr. Khandelwala tell Mr. Anthony what it was that he argued that was accepted.

In his order of 19th January the Chairman quotes a passage from his order of 10th January which deals with a plea of ‘vagueness’. But that plea was concerning the ‘terms of reference’ and had nothing to do with the notice.

Later, the Chairman reverts to the point but concentrates on Mr. Anthony's remark that he would have waived an objection based on the kind of vagueness the Chairman had in mind. That was a piece of rhetoric by Mr. Anthony to demonstrate how trivial he would have thought such an objection to be, and it could never have been raised by him. Mr. Anthony's repeated submissions that he argued only about the ‘facet’ and nothing else, failed to draw any answer in the order.

Thus, an objection was foisted on Mr. Anthony which he had never raised, and would not have cared to raise. And, that objection, he was dogmatically told, had been accepted. The objection which Mr. Anthony did raise was never considered nor decided nor met. Even on 19th January, the Chairman does not conceded that the notice was vague because it did not indicate the ‘facet’. Yet, in his order, he says, that ‘accepting the argument raised’ by Mr. Anthony he directed ‘that a fresh notice should go’.

Secondly, throughout the proceedings on 19th January the Chairman does not answer Mr. Anthony's contention that Mrs. Gandhi had already been examined on 10th January regarding item 11. In his order, the Chairman disposes of the point in one sentence: ‘If the notice was defective and it was made clear to the parties concerned, there can be no question of considering the matter and dealing with a matter on a defective notice’. But, he forgets the penultimate paragraph of the order which he made on 10th January, where he said: …….it is my duty to examine her to determine what her version in regard to these 11 incidents is'. He does not at any time maintain that he indicated to Mrs. Gandhi on 11th January that she was not going to be examined regarding item 11.

Besides, if item 11 had been excluded from consideration on that occasion, what was the use of letting Mr. Anthony argue that the Commission had no power to inquire into the Declaration of Emergency. That argument had reference only to item 11, and there was no other item in the notice to which it could possibly pertain. Furthermore, the Chairman overruled Mr. Anthony's objection forthwith, and did not postpone consideration of that question until a ‘fresh or amended’ notice had been served on Mrs. Gandhi. This shows that item 11 was very much in the picture when she was sought to be examined. The ‘defective notice’ was not, at that time, oppressing anyone's mind.

Thirdly, when on 19th January, Mr. Anthony voices his apprehension that the sole purpose of issuing the ‘fresh or amended’ notice to Mrs. Gandhi is to get her to commit an offence under section 178 of the Indian Penal Code, which was omitted on 10th January, the Chairman does not repudiate it. If Mr. Anthony's allegation was untrue, one would expect the Chairman to come down heavily upon him. But, he utters no word of reprimand. Considering what had already happened on 11th January, Mrs. Gandhi's response to the ‘fresh’ or amended' notice was a foregone conclusion. There was no purpose in it, unless one wanted a repeat performance. The facts that, on 19th January 1978, Mrs. Gandhi was specifically asked to take the oath and section 178 was included in the order or prosecute her, lead to the conclusion that Mr. Anthony was not wrong.

The Complaints

On 20th January 1978 the Chairman forwarded to the Chief Metropolitan Magistrate, Delhi, a complaint against Mrs. Gandhi respecting the events of 11th January. Although the order made by the Chairman on 11th January. Although the order made by the Chairman on 11th January recorded only that an offence under section 179 of the Indian Penal Code had been committed, the complaint alleged that Mrs. Gandhi had committed offences both under ‘sections 178 and 179 of the Indian Penal Code’.

The first 13 paragraphs of the complaint recite the relevant facts and the proceedings before the Commission on 9th, 10th and 11th January 1978. Then, paragraph 14 reads as follows:1

‘14. The Commission had issued a notice under Rule 5(2)(a) of the Commission of Inquiry (Central) Rules, 1972 requiring Mrs. Gandhi to file a statement with regard to the 11 matters specified in the Notice, served on her on 20th December, 1977; and a summons under the authority vested in the Commission under section 4(a) read with section 5(2) read with section 8B of the Commission of Inquiry Act, 1952, to appear before the Commission in person from 9th to 11th January, 1978 to give evidence on oath in regard to all the facts within her knowledge pertaining to 11 matters mentioned therein and not to depart without the permission of the Commission. Smt. Indira Gandhi who was present before the Commission on 11th January 1978 refused to file a statement and also refused to bind herself by an oath or affirmation to state the truth when so required to bind herself by the Commission, legally competent to require that she shall so bind herself. Smt. Indira Gandhi also refused to be orally examined on oath. Smt. Indira Gandhi being legally bound to state the truth on her subject matter of inquiry refused to answer any question demanded of her touching the subject matter of the inquiry by the Commission acting in exercise of the legal powers conferred upon the Commission under the Commission of Inquiry Act, 1952.’

There are four features of this paragraph to which I would call attention.

Firstly, it is to be observed that in the first sentence there is a reference to ‘11 matters’ twice. There is no statement to the affect that on 11th January the examination of Mrs. Gandhi was confined to only 10 items in the notice. No doubt in paragraph 12 of the complaint the order made by the Commission on 10th January is mentioned notice will be served upon Mrs. Indira Gandhi with regard to item 11'. But nowhere in the complaint, neither in paragraph 12 not anywhere else, is it averred, on 11th January, Mrs. Gandhi was sought to be examined regarding 10 items and not 11.

Secondly, the words in the second sentence ' ‘…….. and also refused to bind herself by an oath or affirmation to state the truth when so required to bind herself by the Commission’ are, in my opinion, not factually correct. Whilst dealing with the proceedings before the Commission on 11th January, I have tried to show that Mrs. Gandhi was were asked to take the oath as such. Always, it was coupled with the making of ‘a statement’, on which the emphasis lay. Repeatedly she was asked: ‘Are you willing to make a statement on oath’ or words to that effect. When contrasted with the proceedings on 19th January, the point becomes extremely vivid. On the latter occasion, the Chairman very definitely and clearly asks Mrs. Gandhi: ‘Are you willing to take an oath?’ He repeats that question a number of times in various forms. I have already given reasons why, I think, that on 11th January no one was thinking of the oath as such.

Therefore, it is not correct to say that on 11th January Mrs. Gandhi was ‘required’ by the Commission ‘to bind herself’ by an ‘oath or affirmation to state the truth’. Consequently, it cannot be correct to say that she ‘refused’ to do so. One cannot ‘refuse’ something which is not asked.

The purpose of these particular words in the second sentence of paragraph 14, is quite obvious. The allegation which they contain was necessary to be made for the purpose of section 178 of the Indian Penal Code, which it was decided to join in the complaint. Those words are preceded by the allegation that Mrs. Gandhi ‘refused to file a statement’, which is true. The sentence which follows: ‘Smt. Indira Gandhi also refused to be orally examined on oath’, is also substantially true. But, the allegation lodged between those two, and rendered unobstrusive by the ‘also’ before and after, is not correct.

Thirdly, it is not correct that Mrs. Gandhi was required to bind herself ‘to state the truth’. On 19th January she was asked: ‘Are you willing to tell the truth………’, but not on the 11th.

Fourthly, it is not correct that Mrs. Gandhi's ‘refused to answer any question demanded of her touching the subject matter of the inquiry’. As I have already pointed out, she was never asked any question regarding the 11 items in the summons and the notice served on her. She was only asked whether she would answer questions on those items if they were asked, and she answered, No. But those questions were never put, and her answer remained merely an expression of intention. The question that was actually asked stood answered.

The complaint against Mrs. Gandhi respecting the events on 19th January is dated 21st January 1978, that is, one day after the first complaint. Like the previous complaint, it recites the relevant facts and then the proceedings before the Commission on 9th and 10th January. Surprisingly, it does not refer to the proceedings of 11th January at all. Nor does it mention the fact that another complaint has already been lodged in respect of the events on 11th January.

Paragraph 15 of the second complaint is the equivalent of paragraph 14 in the earlier one. This paragraph 15 reads as follows:

‘15. The Commission had issued a notice under rule 5(2)(a) of the Commissions of Inquiry (Central) Rules 1972 requiring Smt. Gandhi to file a statement with regard ‘to matters specified in the notice served on her on 13th January, 1978 and a summons under the authority vested in the Commission under section 4(a) read with sections 5(2) and 8B of the Commissions of Inquiry Act, 1952, to appear before the Commission in person on 19th January 1978 to give evidence on oath with regard to all the facts within her knowledge pertaining to the matters mentioned therein and not to depart without the permission of the Commission. Smt. Indira Gandhi who was present before the Commission on 19th January, 1978, refused to file a statement and also refused to bind herself by an oath or affirmation when so required to bind herself by the Commission legally competent to require that she shall so bind herself. Smt. Indira Gandhi also refused to be orally examined on oath by the Commission which was legally competent to require her to do so. Smt. Indira Gandhi being legally bound to bind herself by oath and also to state the truth on the subject matters of inquiry refused to answer any question demanded of her touching the subject matter of the inquiry by the Commission acting in exercise of the legal powers conferred upon the Commission under the Commissions of Inquiry Act, 1952.’

When one compares this paragraph with paragraph 14 in the first complaint a number of difference emerge. In the first sentence of this paragraph 15 there is no reference to the number of items in the notice or the summons. Now the word is just ‘matters’ without mentioning the number. In the second sentence the words ‘to state the truth’, which occurred in paragraph 14 of the first complaint, have been omitted. In the third sentence the words ‘by the Commission which was legally competent to require her to do so’ have been added. And, in the fourth sentence the words ‘being legally bound to bind herself by oath and also’ have been inserted.

Presumably, these changes were the result of further thinking about the requirement of sections 178 and 179 of the Indian Penal Code. However, substantially the allegations in both the complaints are the same. Yet, what happened on 11th January was not the same as that which happened on the 19th. On the latter date, Mrs. Gandhi was expressly asked to take the oath and she refused. That was not the position on the 11th.

The complaint against Mr. Mukherjee is dated 20th January 1978. It proceeds on the same lines as those against Mrs. Gandhi. There is nothing in it which needs any special notice. Broadly, the same observations apply.

As I have mentioned already, in the proceedings before the Magistrate the prosecution has closed its evidence. However, Mrs. Gandhi and Mr. Mukherjee have not yet entered on their defence, though Mrs. Gandhi has been examined under section 313 of the Criminal Procedure Code.

The Questions of Law

Well, so much for the facts, and I must now pass on to the law. The arguments have ranged over a very wide field. At an early stage Mr. Madan Bhatia was requested to file a synopsis, which he did. It is mote than 40 pages long. From then on the argument acquired definite focal points. Even so, there has been considerable re-thinking and re-shaping of submissions on both sides as the discussion has proceeded. On behalf of the Union, a synopsis in answer was filed by Mr. Vengugopal in four instalments during the course of his arguments. Nevertheless, he reserved his right to state his ultimate position in a synopsis to be filed after he had concluded his address. That final synopsis was filed just as Mr. Bhatia was closing his reply. It runs to some 54 pages. In the rest of this judgment I will deal with the submissions as presented in their final form.

A large number of cases were cited and discussed before me. That accords with the common experience that citation increases in proportion to the dearth of authority. Many, if no most, of the points argued before me are of first impression. The plain fact is that a similar situation has never arisen before. Therefore, it became necessary to search for principles and analogies and so forth. But, it will serve no purpose to overburden this judgment with each and every case that was cited. That would only add to its volume without increasing the substance. I shall refer only those cases which, I think, are helpful or otherwise need to be noticed.

One matter I must clear at the beginning. Mrs. Gandhi and Mr. Mukherjee have alleged that the Chairman was biased against them. They base this allegation partly on the conduct of the inquiry proceedings by the Chairman, and partly on some documents which, it is said, establish that the Chairman was actively opposed to the Declaration of Emergency; and, even while it was continuing, he denounced it in a printed article and at public meetings called or presided over by him. But those documents, though lying on the record, have not yet been proved. The allegation of bias was argued at great length before me, Mr. Venugopal contended that as it raised questions of fact which had not yet been determined. I ought not to got into the matter. In the course of the hearing the parties came to an understanding and moved a joint application. It was stated in this application that ‘in view of the objection raised by the Respondents’ that bias in the Chairman was ‘a question of fact triable only by the Trial Court on the basis of evidence led by the parties’, the petitioners had ‘agreed not to press the ground of bias’ against the Chairman ‘in these proceedings’. However, the petitioners reserved the ‘right to raise the point of bias’ against the Chairman and ‘lead evidence in the Trial Court, if necessary’. Accordingly, on 20th August 1979, I made an order that the petitioners would ‘not be allowed to proceed with the allegation of bias levelled against Shri J.C. Shah in this proceeding’. Consequently, nothing in this judgment should be construed as in any manner dealing with or adjudicating upon the allegation of bias made by the petitioners against the Chairman.

Whether on 11th January 1978, Mrs. Gandhi was ‘Required’ to take the oath and she ‘Refused’?

Section 178 of the Indian Penal Code reads as follows:

‘Whoever refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally ‘competent to require that he shall so bind himself shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.’

It is manifest that, for a conviction to be had under this section, it must be shown that the accused was ‘required’ to take the oath and had ‘refused’.

On 11th January 1978, the Chairman always asked Mrs. Gandhi: ‘Are you willing to make a statement on oath’, or used some other words to that effect. Taking the oath is one thing; making a statement is another. A person may be willing to take the oath, but not make a statement. Conversely, he may be willing to make a statement, but not take the oath. Or, he may not be willing to do both. Thus, the question by the Chairman was capable of three different answers.

Looking at the debate which preceded the questioning of Mrs. Gandhi by the Chairman on 11th January, it is, to my mind, perfectly clear that he was asking her whether she was willing to make a statement. He was not asking her whether she was willing to take the oath. Nor was he directing her to take it. The oath did not come up in the proceedings or discussion at all. No one's mind was directed towards it. Everyone was thinking of the statement. This is conclusively shown by the fact that no one ever mentioned section 178. Neither the Chairman, nor Mr. Khandelwala, nor Mr. Anthony, referred to it. In the order which the Chairman made at that time to prosecute Mrs. Gandhi, he was of the view that an offence had been admitted only under section 179 of the Indian Penal Code. If he had thought that taking the oath was in issue, and that Mrs. Gandhi had refused to take the oath was in issue, and that Mrs. Gandhi had refused to take the oath, he would certainly also have ordered prosecution for an offence under section 178 of the Indian Penal Code. Even supposing he lost sight of it, surely Mr. Khandewala would have drawn his attention to that section. Therefore, I am perfectly clear that on 11th January the Chairman never directed or ‘required’ Mrs. Gandhi to take the oath.

Since she was not ‘required’ Mrs. Gandhi to take the oath. Mrs. Gandhi having refused to do so does not really arise. However, it is obvious from her replies that she was not refusing to take the oath, but was only refusing to make a statement. Indeed, her very first answer was: ‘I am not willing to make a statement’. The oath was nowhere in her thoughts. It cannot possibly be said that she had refused to take the oath. There is no reason which emerges from the record why she would have objected even to that.

Mrs. Venugopal contended that without recording evidence it is not possible to know what the Chairman meant by his questions and Mrs. Gandhi by her answers. I do not agree with that submission. Every word that was uttered is recorded in the transcript. One has only to read it to know exactly what happened. That is why I have quoted it in extenso. It is too plain that the oath was not a subject of controversy. Moreover, the evidence of the prosecution is already closed, and Mr. Venugopal has not relied on anything in it to put a different complexion on the proceedings.

It was, also, suggested by Mr. Venugopal that since Mrs. Gandhi had refused to take the oath on 19th January it could be inferred that she would have done the same on the 11th. This argument is quite invalid. First, it has to be shown that she was ‘required’ to take the oath on 11th January. That, is something one cannot infer from the proceedings of the 19th. The question of Mrs. Gandhi's refusal can arise only thereafter. In any case, much has happened between the 11th and the 19th January which may have caused a change in Mrs. Gandhi's attitude. Mr. Madan Bhatia said she had been advised to refuse to take even the oath on the 19th as it might later be construed as waiver of certain objections she had become entitled to raise. Howsoever that may be, Mr. Venugopal's argument is mere speculation. A person can be convicted only for what he has done, not for what he might have done.

In his final synopsis, Mr. Venugopal has said that if Mrs. Gandhi ‘was prepared to take the oath and wanted to confine her refusal only to giving information or answering the questions, she should have said so’. That is like asking Mrs. Gandhi why she was not good enough to clarify which particular offence she wished to commit so that afterwards lawyers and judges should not be baffled by the confusion. It is too great a favour to expect from a person accused. Moreover, the argument postulates that Mrs. Gandhi understood the law and the finer implications of all that was happening better than anyone else who was present. It attributes to Mrs. Gandhi an omniscience which it denies to those others. I think, the argument demonstrates that the offence was not committed.

For these reasons, and on the short ground that she was neither ‘required’ to take the oath nor did she ‘refuse’ to take it, I hold that Mrs. Gandhi did not commit any offence under section 178 of the Indian Penal Code on 11th January 1978.

However, she did refuse to take the oath on 19th January, and Mr. Mukherjee likewise refused on 12th January. Whether, thereby, they committed offences under section 178 remains to be considered and depends on other points. Those other points will be equally applicable to 11th January, and the conclusion I have just reached is an additional one in regard to the events on that date.

Whether Mrs. Gandhi and Mr. Mukherjee ‘Refused to Answer’ any question ‘Demanded’ of them?'

‘Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.’

For an offence to be constituted under this section there must be a ‘question demanded’ and a ‘refusal to answer’ that question.

The only question asked from Mrs. Gandhi on 11th and 19th January, and from Mr. Mukherjee on the 12th, was whether they were willing to make a statement. Both of them said, No. So They answered that question. Neither of them refused to answer that question. It is true that their answer intimated their resolve not to answer any questions on the topics of inquiry; but those questions were never asked, and the stage for actual refusal never arrived. The dialogue only elicits the intention of Mrs. Gandhi and Mr. Mukherjee. It is elementary that the law does not punish intention but only acts or omissions. The reason is that until the act is done there is no knowing that the intention may not change. Here, the act or refusal never occurred because the question which might have produced it was never asked.

Mr. Venugopal says that keeping in mind the notices which had been previously served on Mrs. Gandhi and Mr. Mukherjee, the Chairman ‘In substance and in effect’ asked them; ‘What is the information that you possess in regard to the topics set out in the notice?’ In my opinion that is no question at all. It is a demand or request for ‘information’, which is an entirely different thing. But, in any case, that is not in fact what the Chairman said. It is clear from his questioning that he intended to put specific questions regarding the matters under inquiry if Mrs. Gandhi or Mr. Mukherjee had shown any readiness to answer. His own observation of 19th January is clinching. He said: ‘I did not question anyone: I wanted to question’. So there is no room for Mr. Venugopal's argument.

Therefore, in my opinion, the conclusion is inescapable that neither Mrs. Gandhi nor Mr. Mukherjee committed any offences under section 179 of the Indian Penal Code on any of the dates in question.

The Oaths Act 1969

Section 178 and 179 of the Indian Penal Code are deceptive in their simplicity. To gain their full import it is necessary to make a brief study of the Oaths Act 1969. It repealed and replaced the earlier Act of 1873. Naturally, I shall deal with the provisions of the present Act. It was the one in force when the proceedings before the Commission took place.

The relevant part of section 3 of the Oaths Act reads as follows:

‘(1) The following Courts and persons shall have power to administer by themselves or, subject to the provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and affirmation in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:-

(a) all Courts and persons having by law or consent of parties authority to receive evidence;……’

The rest of sub-section (1) and the whole of sub-section (2) are not material.

This section confers power ‘to administer………oaths and affirmations’. In the portion which I have quoted, the power is vested in ‘Courts’ and, also, ‘persons having by law or consent of the parties authority to receive evidence’. [By virtue of section 4(a) of the Commissions of Inquiry Act, the Commission will be such a person.] But, and this is the most important part, there is a qualification: the ‘Courts’ and ‘persons’ can exercise the power only ‘in discharge of the duties imposed or in exercise the power only ‘in discharge of the duties imposed or in exercise of the powers conferred upon them by law’. It follows that even the ‘Courts’ and ‘persons’ empowered, cannot administer the oath of affirmation if they are not acting in the discharge of the duties imposed or in exercise of the powers conferred upon them by law'. That is a proposition to be firmly kept in mind.

Next there is section 4, and it reads as follows:

‘(1) Oaths or affirmations shall be made by the following persons, namely:-

(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law of consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) jurors:

Provided that, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witnesses; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

‘(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.’

If I may put it in this way, this section creates the ‘obligation’ to take the oath. That comes from the word ‘shall’ in the opening sentence. The obligation is placed on ‘all witnesses’ who are defined as ‘all persons who may lawfully be examined, or give, or be required to give evidence……….’. Therefore, if a person cannot ‘lawfully be examined, or give, or be required to give evidence’ he is under no obligation to take the oath. He may legitimately refuse without fear of consequence. This is the second proposition.

Pausing here, and combining the two propositions which I have so far culled, the result is that for an oath or affirmation to be lawfully administered, not only should the ‘Courts’ or ‘persons’ be acting in discharge of the duties imposed or in exercise of the powers conferred upon them by law' but, in addition, the person to whom the oath is sought to be administered must be one who ‘may lawfully be examined, or give, or be required to give evidence’ before them. In minister the oath or affirmation. For those propositions Mr. Bhatia cited a host of cases, but, I think, it is sufficient to mention only Chhotan Prasad Singh and others v. Hari Dusadh and others. AIR 1977 S.C. 407(1); Kotha Subba Chetti and others against The Queen, ILR 6 Mad. 252(2); Nga Pyo v. Emperor, (1908) 7 Cr. L.J. 208(3), and Emperor v. Vaksho walad Tahiro and another, (1911) 12 Cr. L.J. 326(4).

Now, I will go immediately to section 8 and then come back to section 7 a little later. The other sections in the Act are not relevant. Section 8 reads as follows:

‘Every person giving evidence on any subject before any Court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.’

This section creates the legal duty to tell the truth. The duty arises when a person is ‘giving evidence’. He is then ‘bound to state the truth’.

But what does ‘evidence’ mean? Like many words used in the law it has both a narrow and a wider meaning. In the strict sense, oral evidence means-

‘all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;………’

This is the definition in section 3 of the Indian Evidence Act 1872. It will be recalled that section 4 of the Oaths Act requires ‘all witnesses’ to make the oath or affirmation. The obvious corollary is that unless a witness takes the oath or makes an affirmation the statements which he makes are not ‘evidence’. Without the oath or affirmation he is not ‘giving evidence’. Hence, until he takes the oath, the duty under section 8 of the Oaths Act to tell the truth does not fasten. That is why statements without oath are not received as evidence.

This is settled law. It is so strictly applied that in one English case where a witness made an affirmation in circumstances in which under the Oaths Act 1888 it was not permissible, it was held that his evidence should have been excluded see The Queen v. Moore and another, (1891-92) 8.T.L.R. 287(5). In another, a witness was not allowed to give evidence because he objected to taking the oath and could not be allowed to make an affirmation as the requirements of that statute were not fulfilled: see Nash v. Ali Khan, (1891-92) 8.T.L.R. 444(6). And, in R. v. Pritam Singh, (1958) 1 All E.R. 199(7), a charge of perjury was held unsustainable because the accused had wrongly been required to depose on affirmation. The position at common law is stated in Archbold's Criminal Pleading, Evidence and Practice (39th Edn.) (1976) page 255 para 489:

‘The general common law rule is that the testimony of a witness to be examined viva voce in a criminal trial is not admissible unless he has previously been sworn to speak the truth.’

In America, also, the law is the same, Mr. Justice Story said in Thomas Ellicott and Jonathan Meredith v. William Pearl, 35 U.S. 475(8); The general rule is that evidence, to be admissible, should be given under the sanction of an oath, legally administered……..' The same rule is stated in 81 American Jurisprudence 2d Witnesses section 413 page 420.

However, Mr. Venugopal contended, for reasons which will presently appear, that the duty to tell the truth arose under section 8 of the Oaths Act even though a person had not been sworn. For this argument he relied on section 7 of that Act, which reads as follows:

‘No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.’

No doubt this ‘section retains intact ‘the obligation of a witness to state the truth’ notwithstanding an ‘omission to take any oath or make any affirmation’. But, in the present case, according to the prosecution itself, the Chairman did not forget to administer the oath nor did Mrs. Gandhi and Mr. Mukherjee omit to take it. According to the prosecution, Mrs. Gandhi and Mr. Mukherjee deliberately ‘refused’ to take the oath.

In these circumstances, Mr. Venugopal submitted that a ‘refusal’ as within the concept of an ‘omission’. He referred to Mohamed Sugal Esa Mamsan Rer Alalah v. The King, AIR 1946 P.C. 3(9). That case holds that the word ‘omission’ applies to a case ‘where the Court deliberately refrains from administering the oath to a witness’ and is not restricted ‘only to case where the omission is due to some accident or negligence’. There, the unsworn testimony of a child under 12 years old had been relied upon to support the conviction. Under the present Act, the proviso to section 4(1) expressly makes such evidence admissible. A similar proviso was inserted in the previous Act in 1939. The Privy Council decision pertains to a case before that amendment. In that state of the law the Privy Council held that a decision by a judge not to administer the oath to a child whom he ‘founded was competent to testify but whom he did not consider was able to understand the nature of an oath’ could be classed as an ‘omission’ within section 13 of the old Act, which is equivalent to section 7 of the present one. So, at the most, that case shows that a wrong decision by a judge not to administer the oath, though consciously taken, may be an ‘omission’. It has nothing to do with ‘refusal’.

The other case cited by Mr. Venugopal was Lalaram Hari Ram v. State of Madhya Pradesh, AIR 1960 M.P. 59(10). It merely follows the Privy Council case. That seems to have been unnecessary because in the meanwhile the proviso had been added, which has not been noticed in the judgment.

In my opinion, a ‘refusal’ to take the oath cannot possibly be regarded as an ‘omission’ to take it. The difference between the two notions is far too enormous.

Furthermore, section 7 and the proviso to section 4(1) proceed on the assumption that without an oath or affirmation a statement is not evidence. They are special exceptions which prove the rule. Otherwise they would be wholly redundant.

If Mr. Vengugopal's argument were right, it would make not the slightest difference whether a person took the oath or not. According to him the duty to speak the truth under section 8 would arise in either case. Then why administer the oath at all? What purpose does it serve? Faced with this difficulty, Mr. Venugopal answered that the object of the law was merely to create a ‘psychological effect’ on the mind of the witness by administering the oath. He was compelled to admit that by his reasoning the oath ceased to have any legal purpose. To my mind, this logical result of Mr. Venugopal's argument proves it utter futility. I can only regard it as an argument in desperation. It is too much to suppose that the legislature has been dabbling in psychology.

Whether Mrs. Gandhi and Mr. Mukherjee were ‘Legally Bound to state the Truth’?

It is the prosecution's case that Mrs. Gandhi and Mr. Mukherjee refused to take the oath on the occasions in questions. That is why they are being prosecuted under section 178 of the Indian Penal Code. Although I have held that Mrs. Gandhi was not required and did not refuse to take the oath on 11th January, for the purpose of the present point I shall assume that she did refuse.

Looking back at section 179 of the Indian Penal Code it will be seen that it starts on the premise that a person is ‘legally bound to state the truth’. Unless this ingredient is shown to exist, no offence can be constituted under that section. Since Mrs. Gandhi and Mr. Mukherjee had refused to take the oath, no duty ‘to state the truth’ could arise under section 8 of the Oaths Act. I have already stated the reasons for that conclusion. So, unless the duty to speak the truth can be collected from some other provision of law, this requirement of section 179 is not met.

Primarily, Mr. Venugopal relied on section 8 of the Oaths Act. That is the reason why he was anxious to maintain that it applied even though an oath or affirmation had not been administered. When that argument failed, he attempted to derive a duty to speak the truth from a conjoint reading of section 5(2) of the Commission of Inquiry Act and section 177 of the Indian Penal Code. In my opinion, the argument is misconceived. Section 5(2) gives the Commission power to obtain ‘information’. Section 177 makes the furnishing of false ‘information’ an offence. Although the summonses sent to Mrs. Gandhi and Mr. Mukherjee referred to section 5(2), neither of them was called upon to furnish any ‘information’. Nor are they being prosecuted under section 177 of the Indian Penal Code.

The asking of ‘questions’, which is what section 179 envisages, is a totally different thing to seeking ‘information’. When Mrs. Gandhi and Mrs. Mukherjee appeared before the Chairman he did not ask them for any ‘information’ but said he wanted to ‘question’ them. He wanted his questions answered on oath, which is not a requirement for the giving of information. Mr. Venugopal's argument seeks to re-cast the entire proceedings.

In any event, the most that can be derived from section 177 of the Indian Penal Code is a duty not to ‘furnish information’ which is false. It creates no duty ‘to state the truth’ in answer to ‘questions’. That is the duty required by section 179.

Then, Mr. Venugopal sought to rely on the general duty of citizens to tell the truth. But the word in the section is ‘legally’. So it is necessary to show a law which imposes that duty. The following observations made in Laxman Padma Bhagat and others v. The State, AIR 1965 Bombay 195 (11) are apt:

‘That a person should always tell truth is a moral principle, but it cannot be said to be a legal principle as such. Whenever the Legislature requires a person to tell truth, it has so enacted in various enactments. It is only when it has been so enacted and a person fails to tell truth that he comes within the mischief of the provisions of the Indian Penal Code.’

Even when the law imposes a duty to answer, but does not further add that the answers shall be truthful, there is no legal duty to tell the truth. The best example in section 161(2) of the Criminal Procedure Code 1898. Since it did not contain the word ‘truly’, it was held that a false answer given to a police officer would not amount to giving false evidence: see Muhammad Hayat v. Emperor, AIR 1922 Lahore 133(12). In the same context, but with reference to the provisions of the Code of 1872, Chief Justice Garth speaking for the Full Bench in The Empress v. Mussamut Dahia and another, L.L.R. 7 Calcutta 122(13), said:

‘We think it plain that, neither the words 'shall answer all questions' in s. 118 of the Criminal Procedure Code, nor the words 'shall be bound to answer all questions' in s. 119, of the same Code, constitute 'an express provision of law to state the truth' within the meaning of s. 191 of the Penal Code.

Sections 118 and 119 are, in our opinion, merely intended to oblige persons to give such information as they can to the Police in answer to questions which may be put to them, and they impose no legal obligation on those persons to speak the truth, unless we import the word 'truly' in each section after the word 'questions' which we clearly have no right to do.’

Of course, now in the Code of 1973, the word ‘truly’ has been added in section 161(2).

Thus, the conclusion I reach is that since Mrs. Gandhi and Mr. Mukherjee had not taken the oath they were not ‘legally bound to state the truth’. For this further reason, I hold, that they could not conceivably have committed offences under section 179 of the Indian Penal Code on 11th, 12th and 19th January 1978.

This conclusion may seem surprising, but a little reflection will show that it is not. Chapter X of the Indian Penal Code is entitled ‘Of Contempts of Lawful Authority of Public Servants’. Sections 178 and 179 fall in that chapter. On going through the sections in that with the situations arising before public servants in the same sequence in which they would normally occur. Thus, the first two sections deal with offences in relation to service of summons. The next section is concerned with non-attendance in obedience to summons etc. After that comes a section dealing with omission to produce documents required to be produced or delivered to a public servant. And, so on. Now, the oath is always administered before a witness is asked any questions. Therefore, section 178, which comes first, deals with a refusal to take the oath. It provides the penalty for breach of the obligation under section 4 of the Oaths Act. The next stage is the asking of questions, and so section 179 provides punishment for refusal to answer. But, if a proceeding gets blocked at one stage, naturally, until the obstacle is overcome or removed, it cannot go on to the next. So, if a person refuses to take the oath, the stage of asking him any questions cannot reach. Therefore, if an offence has been committed under section 1178, it is impossible for an offence to be committed under section 179. In other words, offences under those two sections cannot co-exist.

This point was raised in one case, but was not decided. That case is Bepin Chandra Pal v. Emperor, (1908) 7 Cr. L.J. 95(14). The accused was convicted both under sections 178 and 179, but the High Court declined to interfere as he had ‘been sentenced to practically one punishment’ for all the offences. It seems that that is what operated most on the minds of the judges. I am afraid the judgments are not very clear, and there is no assistance that I am able to derive from them. However, it is clear that the point was not decided. The last paragraph of the headnote says:

‘Quaere: Whether a person who has once committed an offence under section 178 of the Indian Penal Code can be held to have committed a further offence under section 179 of the Indian Penal Code when he refuses to answer the questions put to him.’

So, it was the very point I am considering, but, unfortunately, the case contains no decision nor any worthwhile discussion.

Mr. Madan Bhatia also cited Jibachh Shah v. The State, AIR 1965 Patna 331(15). In that case an accused voluntarily offered himself self as a witness on his own behalf, but after examination-in-chief refused to take the oath on the adjourned date for the purpose of cross-examination. He was prosecuted and convicted only for an offence under section 178, and not section 179. From this Mr. Bhatia draws the inference that section 179 was found to be in-applicable even though the examination-in-chief had been completed when the accused was asked to take the oath again for being cross-examined. But the point was never raised nor discussed, and I think it is too slender and authority on which to build an argument. I prefer, and am content, to rest any conclusion on principle.

Whether the ‘Fresh or Amended’ Summons and Notice were issued ‘in discharge of the duties imposed or in exercise of the powers conferred upon’ the Commission or in exercise of its ‘legal powers’?

It is a requirement of section 178 of the Indian Penal Code that the public servant who requires a person to bind himself by an oath of affirmation should himself be ‘legally competent to require that (the person) shall so bind himself’. Those words immediately import section 3 of the Oaths Act. To be ‘legally competent’ to administer the oath the public servant must be acting ‘in discharge’ of the duties imposed or in exercise of the powers conferred upon' him by law. In section 179, substantially the same limitations are directly incorporated by the phrase ‘in the exercise of the legal powers’. The question is whether in issuing the ‘fresh or amended’ summons and notice, requiring Mrs. Gandhi to be present on 19th January to make a statement, the Commission was acting ‘in discharge of the duties imposed or in exercise of the powers conferred upon’ it by the Commissions of Inquiry Act or in the exercise of its ‘legal powers’ thereunder.

The only purpose for which a Commission can be appointed under section 3 of that Act is for ‘making an inquiry into any definite matter of public importance. The ‘duty’ imposed on the Commission is to make an inquiry into that ‘matter’. All the ‘powers’ conferred on the Commission can be ‘exercised’ only for that purpose and no other. These propositions are indisputable, and were not disputed.

Ostensibly the ‘fresh or amended’ summons and notice were issued to Mrs. Gandhi in order to inform her that item 11 related to the Declaration of Emergency. No objection necessitating such information was raised at any stage by Mr. Anthony. Notwithstanding ascertions to the contrary, the objection raised by Mr. Anthony, that the ‘facet’ of Mrs. Gandhi's conduct had not been indicated, was never accepted. The record speaks for itself.

In the penultimate paragraph of his order made on 10th January, the Chairman said it was his ‘duty’ to ‘examine’ Mrs. Gandhi ‘to determine what her version in regard to these 11 incidents, which are enumerated in the notice under Section 8B is’. Neither on the 10th nor on 11th January was Mrs. Gandhi told that it was intended to examine her regarding only 10 items, and not item 11. Therefore, when in answer to the questions put by the Chairman she said: ‘I am no willing to make a statement’ because ‘I am not legally bound’ she was speaking in reference to all the 11 items. She had no reasons to exclude item 11. Soon in the background of the earlier proceedings and his own order, even the questions by the Chairman have to be so regarded. Not once during the proceedings on 19th January did he say that in fact he had questioned Mrs. Gandhi only regarding 10 items on 11th January and not 11. He only relied on the legal point that item 11 could not be considered or dealt with on a ‘defective notice’.

Mr. Madan Bhatia contended that since Mrs. Gandhi and already been examined regarding item 11 on 10th January, she could not be called again for that purpose. Therefore, the ‘fresh or amended’ summons and notice had been issued in excess of jurisdiction. Those were the lines on which the point was argued before the Chairman by Mr. Anthony on 19th January. I think, the point requires some careful analysis.

All the confusion is created by the form of the summons issued by the Commission. I have previously discussed that document. It invokes three sections of the Commissions of Inquiry Act: Sections 4(a), 5(2) and 8B. The only section under which Mrs. Gandhi could be compelled to appear before the Commission is section 4(a). Under section 5(2) she could only be asked to furnish information, and under section 8B a notice could be sent telling her that the Commission was inquiring into her conduct and she was entitled to an opportunity of being heard and producing evidence in her defence. Now, the 11 items could be relevant to a requisition under section 5(2) or a notice under section 8B. But they could have nothing to do with the summons. In a summons the matters on which the witness is going to be examined are never specified. It would defeat the very purpose, because the witness would be forewarned.

For the sake of clarity, let us suppose that three separate documents had been served on Mrs. Gandhi: a summons under section 4(a); a requisition under section 5(2); and a notice affording her an opportunity to be heard and lead evidence in defence under section 8B. The 11 items would find a place in the requisition or notice, but not the summons. Any correction of amendment of the 11 items would affect the contents of the requisition or notice, but not the summons. Therefore, the order made by the Chairman on 10th January that a ‘fresh or amended’ notice should issue, because there was a ‘typographical error’ in item 11, did not, and could not, pertain to the summons. In fact, the Chairman himself also used the word ‘notice’ and not ‘summons’. Properly interpreted, the order of 10th January was not a direction to issue a ‘fresh or amended’ summons at all. There was no reason or ground for such an order. Yet, pursuant to that order a summons was issued, and Mrs. Gandhi was compelled thereby to appear before the Commission on 19th January. When she appeared, she was sought to be examined again and asked to take the oath. If the summons had not been issued, that situation could not have arisen. So it comes to this: the order was for issuing a ‘fresh or amended’ notice, but it was utilised for issuing a second summons.

What is the resulting position? Mrs. Gandhi was first summoned to appear before the Commission on 9th, 10th and 11th January. According to the prosecution, she refused to take the oath and make a statement. Then, she was summoned again for 19th January, and again refused to take the oath and make a statement. Thus she committed offences under sections 178 and 179 of the Indian Penal Code twice. The question is, can that happen in law?

Under section 178 an offence is committed if a person refuses to take the oath when required to do so. The moment he refuses, the offence is complete. Likewise, under section 179 when he refuses to answer a question. Suppose the judge repeats the direction to take the oath or the question, and the witness again refuses. That will be a second offence. There is nothing to stop a judge from repeating the direction or asking the same question as many times as he chooses, and each time creating an offence by the witness's refusal. So that a judge, if he is so minded, can multiply offences under sections 178 and 179 as many times as he pleases. Can that be the law? It seems incredible that a judge or ‘other person having by law of consent of the parties authority to receive evidence’ should have such an appalling power. But, what is the legal escape, and the solution to the problem?

The research of Mr. Bhatia has brought forth only one case in which a similar question has ever arisen, and that case was in America. However, before I go to that case, there is one Indian case which is worth noticing. It Queen-Empress v. Hari Lal Lakshman, I.L.R. (1886) 10 Bombay 185(16). A decree holder was asked by the judge whether a receipt produced by the judgment debtor was in his handwriting. He refused to answer, and was convicted under section 179 of the Indian Penal Code. The judgment of the Division Bench consists of just two paragraphs, so I will quote it in full:

‘Under s. 165 of the Indian Evidence Act I of 1872 the Judge may ask any question he pleases about any irrelevant fact, if he does so in order to discover or to obtain proper proof of relevant facts.

In the present case it appears, from the Subordinate Judge's own proceedings, that the question was asked, not with the object above specified, but with a view to criminal proceedings being taken against the witness. Therefore the objection taken by the witness to answer that question, which appears to be irrelevant, was a reasonable one, and he was not legally bound to answer it.

The conviction and sentence must, therefore, be reversed and the fine refunded.’

My purpose in referring to this case is to get the proposition that if a judge asks a question ‘with a view to criminal proceedings being taken against the witness’ and not with the object of achieving the purpose for which the power is conferred, the witness is not ‘legally bound to answer it’. The same principle must surely apply to every power exercised under a statute. If that power is used for the purpose of merely prosecuting a witness, it cannot be a proper exercise of the power.

The American case is Oleta O'Connor Yates v. United States of America, 355 U.S. 66(17), and is extremely helpful. The majority judgment of the Supreme Court of the United States was delivered by Mr. Justice Clarke. I take the facts from his judgment:

‘This case is one of the criminal contempt for refusal to answer questions at trial. Petitioner, admittedly a high executive officer of the Communist Party of California, and 13 codefendants were indicated and convicted of conspiracy to violate the Smith Act. During the trial, petitioner refused on June 30, 1952, to answer 11 questions relating to whether persons other than herself were members of the Communist Party. The District Court held petitioner in contempt of court for each refusal to answer, and imposed 11 concurrent sentences of one your each, which were to commence upon petitioner's release from custody following execution of the five-year sentence imposed in the conspiracy case. This judgment was affirmed by the Court of Appeals. 227 F2d 851. We granted certiorari, 350 US 947, 100 L ed 825, 76 S Ct 322. The principal question presented is whether the filling of a separate contempt for each refusal constitutes an improper multiplication of contempts. We hold that it does, and find that only one contempt has been committed.

The circumstances of petitioner's conviction are these. After the Government had rested its case in the Smith Act trial, all but four of the defendants-petitioner and three other-rested their cases. Petitioner took the stand and testified in her own defense. During the afternoon of the first day of her cross-examination, June 26, 1952, she refused to answer four questions about the Communist membership of a non-defendant and of a codefendant who had rested his case. in refusing to answer, she stated, '……(T)hat is a question which, if I were to answer, could only lead to a situation in which a person could be caused to suffer the loss of his job……perhaps be subjected to further harassment, and ……. I cannot bring myself to contribute to that.' She added. 'However many times I am asked and ‘in however many forms, to identify a person as a communists, I cannot bring myself to do it…' The District Court adjudged her guilty of civil contempt for refusing to answer these questions, and committed her to jail until she should purge herself by answering the questions or until further order of the Court. She was confined for the remainder of the trial.

On the third day of petitioner's cross-examination, June 30, 1952, despite instructions from the court to answer, petitioner refused to answer 11 questions which in one way or another called for her to identify nine other persons as Communists. The stated ground for refusal in these instances was petitioner's belief that either the person named or his family could 'be hurt by' such testimony.

She expressed a willingness to identify others as Communists-and in one instance did so-if such identification would not hurt them.’

One of the submission made by the petitioner was ‘that her several refusals to answer on both June 26 and June 30 constituted but a single contempt which was total and complete on June 26, so that imposition of contempt sentences for the June 30 refusals was in violation of due process’. On this point the judgment of the majority was as follows:

‘Petitioner contends that the refusals of June 26 and June 30 constituted no more than a single contempt because the questions asked all related to identification of others as Communists, after she made it clear on June 26 that she would not be informer. She urges that the single contempt was completed on June 26 since the area of refusal was 'carved out' on that day. From this, petitioner concludes that no contempt was committed on June 30 and that imposition of criminal contempt sentence for refusals of that day to answer violates due process guarantees.

A witness, of course, cannot 'pick and choose' the questions to which an answer will be given. The management of the trial rests with the judge and no party can be permitted to usurp that function. See United States v. Gates (CA2d NY) 176 F2d 78, 80. However, it is equally clear that the prosecution cannot multiply contempts by repeated questioning on the same subject of inquiry within which a recalcitrant witness already has refused answers. See United States v. Orman (CA3d NJ) 207 F2d 148.

Even though we assume the Government correct in its contention that the 11 questions in this case covered more than a single subject of inquiry, it appears that every question fell within the area of refusal established by petitioner on the first day of her cross-examination. The Government admits, pursuant to the holding of United States v. Costello (CA2d NY) 198 F2d 200, that only one contempt would result if Mrs. Yates had flately refused on June 26 to answer any questions and had maintained such position. We deem it a fortiori true that where a witness draw the lines of refusal in less sweeping fashion by declining to answer question within a generally defined area of interrogation, the prosecutor cannot multiply contempts by further questions within that area. The policy of the law must be to encourage testimony; a witness willing to testify freely as to all areas of investigation but one, should not be subject to more numerous charges of contempt than a witness unwilling to give any testimony at all.

Having once, carved out an area of refusal, petitioner remained within its boundaries in all her subsequent refusals. The slight modification on June 30 of the area of refusal did not carry beyond the boundaries already established. Whereas on June 26 the witness refused to identify other persons as Communists, on June 30 she refused to do so only if those persons would be hurt by her identification. Although the latter basis is not identical to the former, the area of refusal set out by it necessarily fell within the limits drawn on June 26. We agree with petitioner that only one contempt is shown on the facts of this case.’

The judgment of the minority was delivered by Mr. Justice Douglas. They differed with the majority on another point, but on the question with which I am concerned, they concurred. This is what Mr. Justice Douglas said:

‘This case to me is a shocking instance of the abuse of judicial authority. It is without precedent in the books.

Mrs. Yates, not wanting to be an informer, refused on cross-examination to answer four questions concerning the Communist Party affiliation of any codefendant who had rested his case or any other person who might be subject to persecution by such a disclosure.

For this, her first refusal, she was given her first sentence and confined in jail for 70 days. On the third day of her cross-examination she was asked 11 more questions along the same line and, adhering to her original position, remained adamant in her refusal to answer. The district judge told Mrs. Yates that he intended to treat her refusals to answer as 11 separate criminal contempts, but indicated that he would defer action on the criminal contempt for the second refusal for the duration of the trial. The conviction for criminal contempt because of her second refusal to testify was affirmed by the Court of Appeals (227 F2d 851) and as now affirmed by this Court.

First, One reason I would reverse is that this is a transparent attempt to multiply offenses. The one offense which Mrs. Yates committed was her first refusal to answer. Her second refusal was merely the maintenance of the same position she took at the start of her cross-examination. I do not think a prosecutor should be allowed to multiply the contempts by repeating the questions. The correct rule, I believe is stated in United States v. Costello (CA2d NY) 198 F2d 200, 204.

'Certainly the refusal to testify was an act in contempt of the Committee for which the defendant was subject to the punishment prescribed by the statute. But when the defendant made his position clear, the Committee could not multiply the contempt, and the punishment, by continuing to ask him questions each time eliciting the same answer: his refusal to give any ‘testimony. In other words, the contempt was total when he stated that he would not testify, and the refusals thereafter to answer specific questions can not be considered as anything more than expressions of his intention to adhere to his earlier statement and as such were not separately punishable.

Or, as stated in United States v. Orman (CA3d NJ) 207 F2d 148, 160.

'……where the separate questions seek to establish but a single fact, or relate to but a single subject of inquiry, only one penalty for contempt may be imposed.'

Any other rule gives the prosecutor and the judge the awful power to create crimes as they choose. Because of the prosecutor's efforts to multiply the offense by continuing the line of questions, Mrs. Yates’ second refusal to answer, following consistently the position she had made clear to the court upon the first day of her cross-examination, was not a contempt. Her second refusal to answer was merely a failure to purge herself of the first contempt, not a new one.

Perhaps, this is one of the cases Mr. Bhatia tried unsuccessfully to cite before the Chairman in the course of the inquiry proceedings. It seems to me to be on all fours with Mrs. Gandhi's case. I entirely agree with its reasoning and there is nothing that I can usefully add.

Like Mrs. Yates, Mrs. Gandhi had also ‘carved out’ her ‘area of refusal’ on the first occasion, 11th January. It extended to all the 11 items mentioned in the summons and notice. Calling her again on 19th January was ‘a transparent attempt to multiply offences’. The addition of section 178 of the Indian Penal Code in the order make on that day more than proves it. May be that section escaped attention on 11th January, but a ‘fresh or amended’ summons and notice could not be issued to Mrs. Gandhi merely to ensure that she now committed the offence under that section. The power under section 4(a) of the Commission of Inquiry Act is not meant to be used for such a purpose. If I may adopt the phrase used by Mr. Justice Douglas, by doing so the Commission ‘abused its authority’. Mrs. Gandhi's second refusal ‘was merely the maintenance of the same position she took’ on the first occasion, and was ‘not separately punishable’.

So, the solution to the problem which I posed a little earlier, is that if the purpose is to multiply offences, the repetition of a direction to take the oath or of a question, will be ‘an abuse or authority’. As the Supreme Court said in S. Partap Singh v. State of Punjab, AIR 1964 S.4C. 72(18):

‘In legal parlance it would be a case of a fraud on a power though no corrupt motive or bargain is imputed. In this sense, if it could be shown that an authority exercising a power has taken into account-it may even be bona fide and with the best of intentions, as a relevant factor something which it could not properly take into account, in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the powers would be bad. Sometimes Courts are confronted with cases where the purposes sought to be achieved are mixed,-some relevant and some alien to the purpose. The courts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action and where the power itself is conditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant purpose is proved to have entered the mind of the authority (See Sadler v. Sheffield Corporation, 1924-1 Ch 483 as also Lord Denning observed in Fitzwilliam's (Earl) Wentworth Estate Co. v. Minister of Town and Country Planning, 1951-2 K B 284 at p. 307). This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is no cured by saying that they had another purpose which was lawful.’

The ‘dominant purpose’ of issuing the ‘fresh or amended’ summons to Mrs. Gandhi was to repair the omission regarding section 178 on 11th January. Its unlawful nature is not ‘cured by saying’ that a ‘fresh or amended’ notice had been ordered to issue earlier on 10th January.

But the term ‘fraud on power’ should not be misunderstood. Its legal meaning has been explained in M.R. Balaji and others v. The State of Mysore and others, AIR 1963 S.C. 649(19):

‘When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the clock, or the veil of the executive action is carefully scrutinised and if it appears that notwithstanding the appearance, the cloak or the veil of the executing action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution.’

It is an axiom of the law that all statutory power must be exercised in good faith: see Arthur John Spackman and The Plumstead District Board of Works, (1885) X.H.L. 229; Mayor, & C., of Westminester and London and North Western Railway Company, (1905) A.C. 426(21); Roberts and Hopwood and others, (1925) A.C. 578(22); and Makhan Singh Tarsikka v. The State of Punjab, AIR 1964 S.C. 381(23). What cannot be done directly must not be done indirectly: see H.H. Maharajadhiraj Madhav Rao Jivaji Rao Scindia Bahadur and others etc. v. Union of India, AIR 1971 S.C. 530(24). The principle of law is stated in simple language by Lord Denning in Regina v. Governor of Brixton Prison Ex parte Soblen, (1963) 2 Q.B. 243(25):

‘It seems to me that it depends on the purpose with which the act is done. If it was done for an authorised purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful.’

Accordingly, it has been held, that an order or requisition made for a collateral purpose is without jurisdiction and ‘cannot be upheld in a court of law’, and the person to whom it is addressed ‘is not bound to comply’ with it: see The Queen v. Lord Leigh and others. In re Kinchant, (1897) 1 Q.B. 132(26).

Reverting back again to section 3 of the Oaths Act, my conclusion is that in issuing the ‘fresh or amended’ summons and notice the Commission was not acting ‘in discharge of the duties imposed or in exercise of the powers conferred upon’ it by the Commissions of Inquiry Act. Nor was it exercising its ‘legal powers’. The power to summon given by section 4(a) of that Act could not be used to get Mrs. Gandhi to repeat her refusal. Therefore, under section 3 of the Oaths Act the Chairman no longer had power to administer the oath on 19th January. He ceased to be ‘legally competent’ within the meaning of section 178 of the Indian Penal Code to require Mrs. Gandhi to take the oath. For the same reason, he could not question her as he was not exercising his ‘legal powers’ within the meaning of section 179. Consequently, Mrs. Gandhi could commit no offences under those sections on that day.

I need hardly add that these particular conclusions are applicable only to the events of 19th January, and not the other occasions.

The ‘Subjects’ of Inquiry

A Commission can be appointed under section 3 of the Commissions of Inquiry Act only ‘for the purpose of making an inquiry into any definite matter of public importance’. Its ‘terms of reference’ are meant to define the ‘subjects’ of inquiry. The powers vested in the Commission by that Act can be exercised only for the purpose of inquiring into thoe ‘subjects’, and not others. If those power are used by the Commission to inquire into matters not falling within the terms of reference, then the Commission is not action ‘in discharge of the duties imposed or exercise of the powers conferred upon’ it by the Commissions of Inquiry Act. It is not then exercising any ‘legal powers’. Hence, on the same reasoning as before, if a Commission seeks to inquiry into ‘matters’ not within its terms of reference, a refusal to take the oath or to answer a question will not make an offence under sections 178 or 179 respectively of the Indian Penal Code. Not only will the Commission not have power to ‘administer’ the oath under section 3 of the Oath Act, the witness will be under no ‘obligation’ under section 4 to take it, for he cannot be ‘lawfully examined, or give, or be required to give evidence’.

These propositions will apply with even greater force if the Commission attempts to inquire into matters respecting which an inquiry is prohibited by law. Naturally, the terms of reference have to be so interpreted as not to violate the law, which the appointing authority must be deemed to know and be credited with the intention to honour and obey.

Although I have laboured the point, the conclusion at which I am driving is a simple one in law; unless a court or tribunal has power or jurisdiction to deal with a particular ‘matter’, it can not exercise any ‘legal powers’. The concept of jurisdiction has been lucidly and comprehensively described in Corpus Juris Secundum, volume 50, Jurisdiction, s. 296, p. 1090:

‘The word 'jurisdiction' implies a court or tribunal with judicial power to hear and determine a cause, and such tribunal cannot exist except by authority of law. The term is generally applied to courts or quasi-judicial bodies, and usually is not applicable to ministerial officers, for ministerial officers do not lose jurisdiction to perform their duties. Jurisdiction always emanates directly and immediately from the law; it is power which nobody on whom the law has not conferred it can exercise.

As sometimes used it means power, authority; power over the particular res or subject; the power to give the judgment that is entered; authority over the subject matter or question presented. It expresses the concept of legal power to interpreted and administer the law in the premises. The word is frequently used, however, as meaning authority to do the particular thing done; or, conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which a board or tribunal has, the doing of something in excess of the power possessed.’

At least so far as this court is concerned, it is well settled that the proceedings before a Commission are quasi-judicial. It was so held by a Division Bench in P.R. Nayak v. Union of India and others, I.L.R. (1973) 1 Delhi 747(27), and, also, in Union of India v. Shri J.N. Takra, Civil Writ No. 522 of 1972 decided on 20th October 1972(28).

The following passage in 10 Halsbury's Laws of England (4th Edn.) para 715 page 323 is equally instructive:

‘By 'jurisdiction' is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a format way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means.’

A Commission is constituted by its terms of reference.

The contention of Mrs. Gandhi and Mr. Mukherjee is that the Commission had no jurisdiction in respect of all or some of the ‘subjects’ or items specified in the summonses and notices served on them. Therefore, it is argued, the Commission had no ‘legal power’ to require them to take the oath or answer any questions, and by their refusals they committed not offence. I will consider these submissions under a number of heads.

Whether ‘Complaints’ were Necessary for the Commission to Inquire into any ‘Matter’?

The witnesses produced by the prosecution, in the court of the Magistrate, were asked whether any ‘complaints’ had been received by the Commission regarding the items mentioned in the summonses and notices sent to Mrs. Gandhi and Mr. Mukherjee. They said they did not know, except that Mr. V.U. Eradi said, in Mr. Mukherjee's case, that a complaint was received from a Mr. Talwar regarding the matter of the ‘appointment of Shri T.R. Varadachari as Chairman of the State Bank of India’. Mr. Eradi admitted that the complaint by Mr. Talwar was not supported by an affidavit, and that he had not mentioned the complaint in the case summary prepared by him. He also admitted that he had not asked Mr. Talwar to file an affidavit nor recorded his statement in the course of the investigation and, indeed, did not even meet him. The Commission, also did not examine Mr. Talwar in the course of the inquiry, Mr. Eradi denied a suggestion put to him that, in fact, no complaint had been received from Mr. Talwar.

Thus, from the evidence given by the prosecution witnesses it is not possible to say whether the Commission received any complaints respecting the matters for which Mrs. Gandhi and Mr. Mukherjee were summoned and, also, asked to furnish statements. Since the Chairman was not called, not allowed to be called, as a witness before the Magistrate, the facts could not be ascertained from him.

Nevertheless, it is patent from the record that no complaints were in fact received or acted upon by the Commission in respect of the matters for which Mrs. Gandhi and Mr. Mukherjee were summoned and required to furnish statements.

It will be recalled that at the very first public hearing of the Commission, the Chairman made a pronouncement. In the first two paragraph this is what he said:

‘The Commission had received complaints numbering more than 48,000 which are being processed and will be dealt with in the usual course either through the agencies of the States or other agencies or by investigations made through the Commission's Officers. Such of the complaints, as the Commission is competent to deal with, will then be dealt with.

2. The Commission proposes to commence hearings and hold public enquiries initially in regard to cases where the Central Government has supplied at the request of the Commission the relevant files and on a perusal of these files it appears that prima facie case of misuse of authority are disclosed.’

This makes it perfectly clear that the Commission was not, at this stage, holding an inquiry into any complaint, although 48,000 had been received. The complaints were still ‘being processed’ and would be be dealt with ‘in the usual course’ by various other agencies or the Commission's officers. The Commission itself would deal with such of them as were within its competence thereafter. The ‘cases’ regarding which ‘public enquiries’ had ‘initially’ been commenced were those in which on a ‘perusal’ of the files supplied by the Central Government ‘at the request’ of the Commission, it appeared that ‘prima facie cases of misuse of authority’ were disclosed. Thus, these were ‘cases’ in which the Commission had decided 'to commence hearings and hold public enquiries' of its own motion and not on the basis of complaints. The ‘cases’ of Mrs. Gandhi and Mr. Mukherjee, which were taken up forthwith, were obviously such cases.

In his Ruling of 21st November 1977, the Chairman made statements which yield the same inference. He said ‘the records of the Government were called for’ and then ‘sifted through the investigating agencies’ and ‘thereafter when it appeared that there was some prima facie evidence of the Commission of an excess, a statement of the case was prepared and publicly read out’. Again, there is no mention of any complaint, nor would a complaint be compatible with such a procedure.

Throughout the proceedings in which Mrs. Gandhi and Mr. Mukherjee were involved, never was a complaint mentioned. Neither the ‘invitations’ nor ‘summonses’ nor ‘notices’ referred to any complaint. Although, Mrs. Gandhi and Mr. Mukherjee were sent the case summaries and all the ‘relevant papers’, they were never supplied with a copy of any ‘complaint’. According to Regulation 14, made by the Commission itself, the ‘person charged’ with the commission of an excess ‘by any complainant in his complaint, statement or affidavit’, had to make ‘his reply to such charge’. How could that be possible without supplying to him a copy of the complaint? The fact that no copy of any complaint was ever supplied to Mrs. Gandhi and Mr. Mukherjee shows that there were none.

In the reports which the Commission submitted to the Central Government after the inquiry proceedings were over, there is no mention of any complaints having been received regarding the ‘items’ in the summonses and notices sent to Mrs. Gandhi and Mr. Mukherjee. In the complaints lodged against them in the court of the Magistrate, it is not related that any complaints had been received by the commission against them. In the petitions filed in this court, with which I am presently dealing, both Mrs. Gandhi and Mr. Mukherjee have categorically alleged that there were no complaints before the Commission in respect of the matters for which they were summoned and required to furnish a statement. Since no reply or counter-affidavit has been filed by the Chairman it is not possible to know his stand. However, in the affidavits filed by the Union it is not asserted that any complaints regarding those matters were received by the Commission. That allegation by Mrs. Gandhi and Mr. Mukherjee is left unrefuted, and all that is said is that even without any complaint being received the Commission had jurisdiction to inquire into those matters. Nothing could be better proof that no complaints had in fact been received, and I have not the least hesitation in reaching that conclusion.

That brings me to the main question: were complaints a necessary requirement by holding an inquiry into any matter by the Commission? The answer depends on the ‘terms of reference’. They are contained in a notification published in the Gazette of India dated 28th May 1977 which comprises 5 paragraphs. Only the first 3 paragraphs are relevant, and they reads as follows:

‘Whereas there is a widespread demand from different sections of the public for an inquiry into several aspects of allegations of abuse of authority, excesses and malpractices committed and action taken or purported to be taken in the wake of the emergency proclaimed on the 25th June, 1975 under Article 352 of the Constitution;

And whereas the Central Government is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making inquiry into a definite matter of public importance, that is, excesses, malpractices and misdeeds during the Emergency or in the days immediately preceding the said proceeding the said proclamation, by the political authorities, public servants, their friends and/or relatives and in particular allegations or gross misuse of powers of arrest or detention, maltreatment of and atrocities on detenus and other prisoners arrested under DISIR, compulsion and use of force in the implementation of the family planning programme and indiscriminate and high-handed demolition of houses, huts, shops, buildings, structures and destruction of property in the name of slum clearance or enforcement of town planning or land use schemes in the cities and towns resulting, inter alia, in large number of people becoming homeless or having to move far away from the places of their vocation.

Now, therefore, in exercise of the powers conferred by Section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952), the Central Government hereby appoints a Commission of Inquiry consisting of the following, namely,

Chairman-Shri J.C. Shah, Retired Chief Justice of the Supreme Court of India.

2. The Terms of reference of the Commission shall be as follows:-

(a) to inquire into the facts and circumstances relating to specific instances of-

(i) subversion of lawful processes and well-established conventions, administrative procedures and practices, abuse of authority, misuse of powers, excesses and/or malpractices committed during the period when the Proclamation of Emergency made on 25th June, 1975 under Article 352 of the Constitution was in force or in days immediately preceding the said Proclamation.

(ii) misuse of powers of arrest or issue of detention orders where such arrests or orders are alleged to have been made on considerations not germane to the purposes of the relevant Acts during the aforesaid period.

(iii) specific instance of maltreatment of and/or atroscities on persons arrested under DISIR or detained and their relatives and close associates during the aforesaid period.

(iv) specific instances of compusion and use of force in the implementation of the family planning programming during the aforesaid period.

(v) indiscriminate, high-handed or un-authorised demolition of houses, huts, shops, buildings, structures and destruction of property in the name of slum clearance of enforcement of Town Planning or land use schemes, during the aforesaid period.

Provided that the inquiry shall be in regard to acts of such abuse of authority, misuse of powers, excesses, malpractices etc. alleged to have been committed by public servants, and

Provided further that the inquiry shall also cover the conduct of other individuals who may have directed, instigated or sided or abetted or otherwise associated themselves with the commission of such acts by public servants;

(b) to consider such other matters which, in the opinion of the Commission, have any relevance to the aforesaid allegations; and

(c) to recommend measures which may be adopted for preventing the recurrence of such abuse of authority, misuse of powers, excesses and malpractices.

3. The inquiry by the Commission shall be in regard to-

(i) complaints or allegations aforesaid that may be made before the Commission by any individual or association in such form and accompanied by such affidavits as may be prescribed by the Commission, and

(ii) such instances relatable to paragraph 2(a)(i) to (v) as may be brought to its notice by the Central Government or a State Government or an Union Territory for inquiry.’

For the present question, paragraphs 2 and 3 are most material. The opening words of paragraph 2(a) say that the Commission can ‘inquire into the facts and circumstances relating to specific instances’ of the kinds of ‘excesses, malpractices and misdeeds’ described in the 5 sub-clauses which follow. Those sub-clauses define in general terms the categories of ‘excesses, malpractices and misdeeds’ into which the Commission may inquire. But, as the opening words specifically say, the inquiry has to be into ‘specific instances’ thereof. In other words, the Commission cannot inquire in a genera way into the categories of ‘excesses, malpractices misdeeds’ enumerated. Its inquiry must be directed to specific instances. But, then, how are the specific instances of those kinds of ‘excesses, malpractices and misdeeds’ to be identified? The answer is in the next paragraph.

Consistently, with this line of thought, paragraph 3 begins with the words: ‘The inquiry by the Commission shall be in regard to..’ It will be seen that those words are peremptory, and admit of no exception. What follows in the ensuing portion must, therefore, be fulfilled in all cases into which the Commission inquires. The first sub-clause stipulates ‘complaints or allegations aforesaid’ made before the Commission by ‘any individual or association’. The second sub-clause provides for ‘such instances……as may be brought to its notice by the Central Government’. But there must be the one or the other for the Commission to have power to inquire, that is, jurisdiction.

Reading paragraphs 2 and 3 together, they make perfect sense. The general categories of ‘excesses, malpractices and misdeeds’ into which the Commission may inquire are set out in paragraph 2. But the ‘case’ into which the Commission will inquire will ‘arise’ only in accordance with paragraph 3. Until it arises, there is nothing into which the Commission can inquire. It is like a civil or criminal court which has general civil or criminal jurisdiction all the time. But until a case is brought before it by a plaint, petition or complaint there is nothing on which its jurisdiction can operate.

So, either a complaint or a reference of a ‘specific instance’ by the Central Government was a prerequisite to the exercise of its jurisdiction to inquiry by the Commission. In the ‘cases’ for which Mrs. Gandhi and Mr. Mukherjee were summoned and ‘directed’ to furnish a statement, the matter was not ‘brought to the notice’ of the Commission by the Central Government. The Commission has never said so, nor does the Union in its reply to the petitions before me. And, I have already concluded that there were no complaints. It follows that the Commission had no jurisdiction to inquire into any of the matter concerning which Mrs. Gandhi and Mr. Mukherjee were summoned and required to furnish a statement.

My interpretation of the ‘terms of reference’ is not the least bit novel. The Commission understood the terms of reference in the same way. On 23rd June, 1977 the Commission issued a notification under Rule 5(2)(b). In paragraph 2 it was said: ‘Members of the public are requested to file the complaints or statements regarding the matters specified above’. Those matters were specified in paragraph 1(2) and were the categories of ‘misuse of authority, excesses and malpractices’ into which the Commission could inquire. Broadly, they are the same as the sub-clauses in paragraph 2 of the ‘terms of reference’. But, it is significant that in paragraph 1(2)(a) of the notification the Commission is asking for ‘details of specific instances’. In most of the other sub-clause of paragraph 1(2) it is asking for ‘details of the case’. Furthermore, in paragraph 1(1)(a) and (e) of the notification, the Commission has prescribed the forms of the ‘statement of facts’. One of the requirements is that it should set out ‘each item of excess or misuse of authority or malpractice committed or abetted………’.

Likewise, in the ‘Regulations of Procedure’ issued by the Commission on 12th August 1977, the underlying assumption is that it will proceed on complaints. I have already mentioned Regulation 14, but I will now set out in full:

‘The Commission will ordinarily call upon any person charged with committing or participating in the Commission or otherwise being concerned in or privy to the Commission of excesses and malpractices by any complainant in his complaint statement or affidavit, to make his reply to such charge. The reply shall ordinarily be made in a statement viva-voce before the Commission. But the Commission may allow statement in writing and if thought appropriate sworn by such person in an affidavit.’

This Regulation very distinctly visualises a complainant and a complaint.

However, Mr. Venugopal contended, that, the Commission could hold and inquiry any matter even without a complaint and without the matter having been ‘brought to its notice by the Central Government’. He said that paragraph 3(a) of the terms of reference was merely intended to give a complainant a ‘locus standi’ before the Commission, so that the Commission could not refuse to entertain a complaint. He described that paragraph as merely ‘procedural’. In support of his argument, he emphasised that in paragraph 3 the words were not that the inquiry by the Commission shall ‘only’ be in regard to complaints or allegations or instances brought to the notice of the Commission by the Central Government. Nor did paragraph 2 and 3 contain any words suggesting that the Commission could not inquire into an excess of its own motion, and it was not permissible to read into those paragraphs any such negative implication. According to him, paragraph 2 was complete in itself, and the Commission could find out and inquire into an excess by using the investigating agency provided by section 5A of the Commission of Inquiry Act. otherwise, he said, the functioning of the Commission, which was an ‘inquisitorial’ tribunal specially constituted to make a ‘probe’ into the ‘excesses’, malpractices and misdeeds', could be rendered ineffective by the mere fact that no complaints were received.

At one time Mr. Venugopal took the position that paragraph 3 of the terms of reference may possibly control paragraph 2(a), but not paragraph 2(b) and (c). There is no warrant for that argument because paragraph 3(i) refers to the ‘allegations aforesaid’ which will cover everything in paragraph 2. In contrast, paragraph 3(ii) is expressly related ‘to paragraph 2(a)(i) to (v)’. But leaving that aside, the argument is even otherwise of no moment. Paragraph 2(b) is merely ancillary to 2(a). It refers to ‘such other matters which, in the opinion of the Commission, have any relevance to the aforesaid allegations’, which takes one back to paragraph 2(a). Paragraph 2(c) allegations', which takes one back to paragraph 2(a). Paragraph 2(c) charges the Commission with making recommendations. The allegations with which Mrs. Gandhi and Mr. Mukherjee are concerned have to fall under paragraph 2(a) if they are to be sustained. Paragraphs 2(b) and (c) are of no relevance to the matter. Therefore, even if the argument of Mr. Venugopal were right, which in my opinion, it certainly is not, it would not further his main submission. Having realised that, he left it where it was.

Coming then to the main argument on behalf of the Union. I think, it is totally unacceptable. To begin with it does not fit the terms of reference as they stand drafted. If paragraph 3 was intended merely to give the right to a complainant to move the Commission, then surely the opening words would be: ‘The Commission shall also inquire into…..’ complaints etc. The words used by the draftsman are: 'The inquiry by the Commission shall be in regard to…..', and, then, sub-clauses (i) and (ii) follow. The ‘shall’ is both peremptory and limiting. If the draftsman was intending to achieve the result which Mr. Venugopal seeks to derive, the word ‘also’, or some equivalent, was indispensable in paragraph 3. The argument of Mr. Venugopal is, in effect, re-writing paragraphs 2 and 3 of the terms of reference.

The scheme of the ‘terms of reference’ is such that paragraph 2 and 3 have to be interdependent. The categories of excesses into which the Commission may inquire are described in paragraph 2. But how is the Commission to decide into which particular excess it should inquire? The answer, as I have already said, is furnished by paragraph 3. The Commission must wait for a complaint or for a matter to be brought to its notice by the Central Government. In order to work paragraph 2 in isolation. Mr. Venugopal had to resort to the argument that the Commission could use its investigating agency for determining the excess into which it would inquire. There are two strong objections to that argument. Firstly, the investigating agency provided to the Commission can be used under section 5A of the Commissions of Inquiry Act only ‘for the purpose of conducting any investigation pertaining to the inquiry’. That means, the inquiry, and the ‘subject’ thereof, must already exist. The investigating agency can be used to assist in that inquiry. But Mr. Venugopal's argument reverses that order of things. It enables the Commission to use the investigating agency to discover, or as Mr. Madan Bhatia put it, ‘ferret out’ the subject into which the Commission would inquire. The argument makes section 5A do a duty it is not supposed or intended to do.

Secondly, not only does the argument of Mr. Venugopal not accord with the meaning and purpose of section 5A, it leads to a blatant infringement of section 3 of the Commissions of Inquiry Act, which would invalidate the very terms of reference. Section 3 requires that the subject of inquiry must be ‘definite’. So the terms of reference must themselves define what is the ‘subject’. The determination of the subject cannot be left to the Commission. That would make the Commission a tribunal of almost unlimited and unpredictable jurisdiction. In Anisminic, Ltd. v. The Foreign Compensation Commission and another, (1969) 1 All E.R. 208(29), Lord Wilberforce said: ‘Although, in theory perhaps, it may be possible for Parliament to set up a tribunal which has full and autonomous powers to fit its own area of operation, that has so far, not been done in this country’. Nor, as far as I am aware, has it ever been done here. Paragraphs 2 and 3 of the terms of reference would be unnecessary if MR. Venugopal's argument were right. It would be enough to say that the Commission may inquire into any ‘excesses, malpractices and misdeeds it thinks fit or is able to discover’.

In all common law jurisdictions, the law is firmly set against ‘roving inquiries’. The Supreme Court has refused to countenance them, and so have the High Courts: See Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 S.C. 295(3); Krishna Ballabh sahay and others v. Commission of Inquiry and others, AIR 1969 S.C. 258(31) and Md. Anish Khan v. T.L.V. Aiyar and another, AIR 1970 Patna 334(32). They have been given the pejorative name of ‘fishing expeditions’. Our law does not tolerate them because they are unfair to the individual and are capable of working immense injustice. That is the reason for the word ‘definite’ in section 3 of the Commissions of Inquiry Act. That is why even the Central Government must bring to the notice of the Commission specific ‘instances’ under paragraph 3(iii) of the terms of reference.

The fear expressed by Mr. Venugopal that if there were no complaints, on the interpretation I have placed on the terms of reference the Commission would be unable to function, is in the circumstances highly theoretical. In fact 48000 complaints were received according to the figures given by the Commission. The appointing authority can at least be credited with some judgment as to whether any complaints were likely to be received. And, if no one chooses to complain, one must presume there is no cause for complaint. Then the ‘widespread demand……..for an inquiry recited in the notification would have been legally appeased.

Thus, I come to the conclusion that the Commission had no jurisdiction or power to inquire into any of the matters for which Mrs. Gandhi and Mr. Mukherjee were summoned and required to furnish statements because there were no complaints and those matters had not been brought to its notice by the Central Government. Those were necessary conditions for the Commission to exercise its ‘legal powers’. It could not act suo moto. That power must be expressly given: see John P. Peters v. Oveta Culp Hobby et al., 349 U.S. 331(33). Even under the Criminal Procedure Code a Magistrate cannot hold a ‘preliminary inquiry’ unless there is a complaint. He cannot do so if he has taken cognisance of an offence on some other basis: see Tiloki Mahton v. King Emperor, AIR 1921 Patna 302(34). By analogy, the same principle will apply here.

Mr. Madan Bhatia contended that by proceeding against Mrs. Gandhi and Mr. Mukherjee without receiving any complaints and ‘ferreting’ out allegations against them, the Chairman had assumed the role of a complainant himself. Therefore, it was submitted, that he was no longer capable of functioning as an impartial tribunal, and, in consequence, lost jurisdiction. Some authorities were also cited in support of this submission. However, it seems to me that this argument verges on bias, which ground, it has been agreed, will not be pressed in these proceedings. In fact, in the synopsis prepared by Mr. Bhatia this is the very first ground under the head ‘bias’. Therefore, I refrain from dealing with it.

The Oath of Secrecy

On 1st October 1977, when Mr. Mukherjee appeared before the Commission he read out the oath of secrecy which a Minister is required to take, and made a submission on which the Chairman gave a ruling. I have already quoted that portion of the transcript, but for refereshing the memory I will quote the material passage again:

‘Witness …………. The binding nature of the oath continues to be so even after I ceased to be a Minister. The power conferred on the Commission by the Act cannot and does not include a power to qualify or destroy the provisions of the Constitution and the obligations imposed by the Constitution. While I am naturally anxious to co-operate in every possible way with a public Inquiry of this kind. I can only answer those questions which do not involve mattes which came under my consideration or to my knowledge as a Minister. It is, therefore, necessary that it may be authoritatively determined as to the scope of the oath and the matters which I am not at liberty to reveal. It kill be appreciated that the issue is being raised not as a personal matter, but in the larger interests of functioning of the Parliamentary Democracy under the Constitution.

Chairman: Apart from my personal opinion, the matter was referred to the Ministry of Law and they have said that there is no question of any breach of the oath of office when he is called upon to disclose facts which are matters relating to the administration of the department. I will just read out the opinion. A copy of it was brought to me yesterday.

Witness: I will like to make a small submission…..

Chairman: I do not desire to rely on my own view. That is why the matter was referred to Law Ministry.

(The view of the Law Ministry was read out).

Chairman: All the records that we requested from the Govt. have been made available by the Govt. to the Commission so as to enable with the Commission to hold an inquiry. But in my view-if I reverse it-in the view of the Law Ministry and to my view, there can be no question of claiming a privilege or seeking resort to the oath of office by saying that you are seeking to disclose any secret with regard to the disclosure of which or non-disclosure of which any sanction is not attached by any statutory provision. Would that satisfy you?

Witness: Sir, may I make a small submission? I am not claiming any privilege nor I am unwilling to provide any information which is relevant. But as to the nature of the subject, the information which I had, I had only in the capacity as a Minister. My point is whether by revealing that information, I am violating the oath of secrecy which I had to take while I was holding as a Minister. My second submission is if you direct me…….that is why I have sought your direction. If you direct me and order me, I am willing to place whatever information I have. I am not claiming any privilege but I would like to be protected that while making the information available to the Commission which I had to know in the capacity as Minister-I am neither violating the oath of secrecy nor I am attracting the provisions of the Official Secrets Act.

Chairman: You can take it-and this is my ruling-that by giving this information before this Commission, you are not violating either the provisions of the Official Secrets Act or the oath of office.

On 27th October 1977, Mr. V.C. Shukla raised the same point. The Chairman told him that he had already given his ruling and added: ‘I do not see any reason why I should reconsider it’.

Again, on 14th November 1977, Mr. Mukherjee reagitated the point. He objected that the Chairman was ‘not entitled to receive any opinion from the (Law) Ministry’ and contended that the opinion given was ‘wrong and baseless’. The Chairman explained that the ruling he had given was really based on his own opinion but ‘was further supported by the view of the Law Ministry’. He then added: I have had occasion to consider the matter over again and I do not see any reason to alter that view'.

Thus, at least three times in the course of the inquiry proceedings the Chairman ruled that ‘privilege’ could not be claimed under the oath of secrecy, nor could it be ‘resorted’ to, as there was no ‘sanction’ ‘attached’ to it ‘by any statutory provision’. He further ruled that by giving to the Commission the ‘information’ which it demanded, a Minister, or, rather, an ex-Minister, would not be ‘violating’ the oath.

Mr. Bhatia has contended that this ruling given by the Chairman was a gross violation of the Constitution; so much so, that it had the effect of undermining the entire constitutional structure. Therefore, by intimating that he intended to put questions regarding matters falling within the ambit of the oath of secrecy, and directing that they be answered, the Chairman forfeited any power or jurisdiction he might otherwise have possessed to administer the oath or to question Mrs. Gandhi and Mr. Mukherjee. According to Mr. Bhatia's submission, after that ruling, Mrs. Gandhi and Mr. Mukherjee could not longer be ‘lawfully examined’. To deal with this argument. I must first dwell on the reasons and the object of the oath of secrecy.

As everybody knows, in this country we have not only a Parliamentary Democracy, but, also, a Cabinet system of government. In Article 74 the Constitution calls it a ‘Counsel of Ministers’. It says:

‘(1) There shall be a Council of Ministers with the prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.’

By the Constitution (Forty-Fourth) Amendment Act 1978 a proviso was added to clause (1) to the effect that ‘the President may require the Council of Ministers to reconsider such advice………..’, but it is not relevant to the present question and, in any case, did not exist it is not relevant to the present question and, in any case, did not exist when Mrs. Gandhi and Mr. Mukherjee were holding office.

Article 75 makes ‘other provisions as to Ministers’ and is the one with which I am presently concerned. It consists of 6 clauses, but only the first 4 are relevant, and they read as follows:

‘(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

(4) Before Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.’

Forms Nos. I and II in the Third Schedule are the forms of the oaths, and they are as follows:

‘I

Form of oath of office for a Minister for the Union:-

'I, A.B., do swear in the name of God that I will bear true Solemnly affirm

faith and allegiance to the Constitution of India as by law establish, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear of favour, affection or illwill.'

II

Forms of oath of secrecy for a Minister for the Union:-

‘I, A.B., do swear in the name of God that I will not directly Solemnly affirm

or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration of shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.' ’

I will be observed that the words of the oath of secrecy are extremely wide. They could hardly be wider. ‘Any matter’ brought ‘under’ the ‘consideration’ of a Minister or which ‘become(s) known to him in his capacity ‘as a Minister’ is within the oath. He must not ‘Communicate or reveal’ any such matter ‘directly or indirectly’ to ‘any person or persons’. There is only one expection, and that is when disclosure ‘may be required for the due discharge of (his) duties as such Minister’.

In the States also there is a ‘Council of Ministers’: see Article 163. They, too, must take oaths of office and secrecy before entering upon office: see Article 164. The forms of those oaths are also in the Third Schedule. They are Forms Nos. V and VI and are identical with the forms meant for a Minister for the Union.

It is historically interesting that in ‘the First Draft of the Constitution of India’, which was prepared by the Constitutional Adviser, there was no oath of secrecy. By clause 56(3), a Minister was required only to make a ‘declaration’ before entering upon office. The form of this declaration was almost the same as the present oath of office. However, the omission was soon repaired. On 8th November 1947, the Drafting Committee presided over by Dr. Ambedkar recorded a minute that, in addition to the oath of office, there should ‘also’ be an oath of secrecy, and they revised clause 56(3) accordingly. This became the present Article 75(3): see Framing of India's Constitution, by Shiva Rao, Vol. III, pages 349, 350 and 351.

In the Constituent Assembly the oath of secrecy was discussed very minutely. The debates make fascinating reading. They even discussed whether ‘swear in the name of God’ should be ‘above the line’ and ‘solemnly affirm’ below, or the other way round. Powerful speeches were made, and one member, Shri Mahavir Tyagi, even alleged that Dr. Ambedkar because of his ‘personal prejudice’ had made ‘God go under the line’. Dr. Ambedkar attempted a justification on logical and legal grounds, but as one can see, the Constituent Assembly decided to keep God ‘above the line’.

It appears that in the Draft Constitution put before the Constituent Assembly, the oath of secrecy to be taken by a Minister for State. Form No. VI, had the words at the end: ‘of as may be specifically permitted by the Governor in the case of any matter pertaining to the functions to be exercised by his in his discretion’. That meant the Governor had the discretion to ‘waive’ the oath. Dr. Naziruddin Ahamd had moved an amendment that similar words be added in Form No. II, the form of oath of secrecy to be taken by a Minister for the Union. On the other hand, Dr. Ambedkar had moved to delete those words even in Form No. VI, This part of the debate is of critical importance. It is at pages 711 to 712 of Volume IX of the Official Report of the Constituent Assembly Debates:

‘The Honourable Dr. B.R. Ambedkar: Sir, I move:

'That in Form VI of the Forms of Declaration in the Third Schedule, the words ‘or as may be specially permitted by the Governor in the case of any matter pertaining to the functions to be exercised by him in his discretion be omitted.’

These are unnecessary because we do not propose to leave any discretion in the Governor at all.

Shri H.V. Kamath: May I remind Dr. Ambedkar that 143 has not yet been amended?

The Honourable Dr. B.R. Ambedkar: Yes, I remember that.

Mr. Naziruddin Ahmad: Sir, I beg to move:

‘ 'That with reference to amendment No. 57 of List I (Fifth Week) of amendments to Amendments, in the Third Schedule, in Form II of the Declarations, the following be added at the end:

‘or as may be specially permitted by the President in the case of any matter pertaining to the functions to be exercised by him in his discretion.’ '

Mr. President: We have abolished all discretion.

Mr. Nazruddin Ahmad: The difficulty arise in connection with the phraseology occurring at the end of Form VI.

Mr. President: That is why Dr. Ambedkar has moved for its deletion.

Mr. Nazruddin Ahmad: In that case this will not be required. I do not move 128 also as it is similar.

Thus, those words were deleted in Form No. VI. The reason was that the Constituent Assembly did not wish to leave ‘any discretion in the Governor at all’ and, likewise, none in the President in the case of a Minister for the Union. The oath was passed in its absolute form with only the one exception that it states. An express decision was taken that neither the President nor the Governor should have any ‘discretion’ to ‘waive’ the oath. All ‘discretion’ was ‘abolished’.

Why was such great importance given to the oath of secrecy? What is the need for secrecy? The answer is in Article 75(3), which just precedes the clause requiring the taking of the oaths. The Council of Ministers is enjoined to be ‘collectively responsible’ to the House of the People. Collective responsibility is the sine qua non of the Cabinet system, without which it simply cannot exist. The Constitution visualises the Cabinet as a team in harness pulling together and in the same direction. But that has to be reconciled with discussion, debate and dissent within the Cabinet. Therefore, the oath of secrecy. It puts a veil over the Internal working of the Cabinet, and enables the principle of collective responsibility to be maintained alongside differences within. If there were no oath of secrecy it would be impossible to preserve even an outward semblance of collective responsibility, and the Cabinet system would collapse. The oath of secrecy is vital for the system. Collective responsibility and the oath are inextricably linked. All the books on constitutional law treat of them together.

Ivor Jennings in his book on the Cabinet system (1969 Edn.) quotes the views of some eminent statesmen on page 277 under the title ‘Collective Responsibility’. It is recorded that in 1878. Lord Salisbury said:

‘For all that passes in Cabinet each member of it who does not resign is absolutely and irretrievably responsible, and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues……It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential principles of parliamentary responsibility established.’

Mr. Joseph Chamberlain put it slightly differently:

‘Absolutely frankness in our private relations and full discussion of all matters of common interest……..the decisions freely arrived at should be loyally supported and considered as the decisions of the whole of the Government. Of course there may be occasions in which the difference is of so vital a character that it is impossible for the minority…….to continues their support, and in this case the Ministry breaks up or the minority member or members resigns.’

These passages have been quoted with approval by the Supreme Court in State of Karnataka v. Union of India and another, AIR 1978 S.C. 68(35) at page 135. Relying on the article on the ‘Cabinet’ in Chamber's Encyclopaedia (1973 Edn.) Vol. 2, page 736, the Supreme Court said:

‘The history of the principle of collective responsibility in England shows that it was originally developed as against the King.

The ministers maintained a common front against the King, accepted joint and serveral responsibility for their decisions whether they agreed with them or not, and resigned in a body if the King refused to accept their advice. In relation to the British Parliament, collective responsibility means that the cabinet presents a common front. In Melbourne's famous phrase, 'the cabinet ministers must all say the name thing'. The principle of collective responsibility perhaps compels ministers to compromise with their conscience, but in matters of policy they have to speak with one voice, each one of them being responsible for the decision taken by the cabinet.’

The position in India is the same. As Ivor Jennings says: ‘A minister who is not prepared to defend a Cabinet decision must, therefore, resign’.

With regard to the oath of secrecy, A.B. Keith says in his book on The British Cabinet System (1939 Edn.) at page 11:

‘Cabinet government is based on the duty of members to keep confidence, and publication of secrets, even long after, is not always felt to be proper.’

The reasons for secrecy are explained very elaborately by Collin Seymour-Ure in a chapter contributed by him to ‘Government Secretary in Democracies’ by Itzhak Galnoor (1977 Edn.) I quote from page 158:

‘Much government secrecy follows a few bedrock constitutional principles. First, there is the convention of collective cabinet responsibility. The point of this in the eighteenth century was to protect individual ministers against the king, who could ill afford to ignore the advice of a united ministry. With the gradual nineteenth-century displacement of the king's power the convention became equally effective in maintaining a government's majority in the House of Commons. Members of Parliament thought twice about voting down a minister if that meant turning out the whole government. Cabinet secrecy-a bare list of the names of those attending is all that anyone is officially supposed to know-is an obvious instrument of collective responsibility. It permits uninhibited private argument to precede the cool unanimity with which decisions are made public. The Opposition has no chance to exploit disagreements; neither do dissident government supporters.

The convention is strengthened by its application to ministers outside the cabinet, who may have had nothing to do with most policy decisions yet must remain loyal to them. In 1969, a junior minister, Jeremy Bray, was obliged by Harold Wilson to resign because he published a book containing criticism of government policy. The convention therefore covers at least fifty ministers (depending on the government's size).

‘A second crucial convention is individual ministerial responsibility. A minister is responsible to Parliament for every action carried out by officials in his department. Exactly what 'responsible' means is a matter of dispute. But if nothing else it means 'answerable,' and the principle has the important corollary that no one else is answerable. The civil servants themselves who make most of the decisions remain anonymous and invisible. They are not accountable directly or personality to the public or to any system of administrative courts. They appear before parliamentary committees only with the approval of their ministers and cannot be obliged to answer questions. In this way the logic of Parliament's right to control the executive ultimately through the purse, is maintained. Even information that is to become public is conventionally presented to Parliament first. The report of a royal commission or a parliamentary select committee, or the contents of a while paper expounding government policy, may be ready for some time but cannot be published by the press until Parliament has received it. Indeed, Premature publication of a select committee report, which is the property of the House of Commons, is a breach of privilege-potentially endangering the proper performance of the House's functions-and as such it is in principle punishable as contempts.’

In England the position is in some respect different. Since there is no written Constitution, collective responsibility is merely a convention. It is not enacted in any statute. In India it is ordained in express words by the Constitution. It is a convention in England that every member of the Cabinet is made a member of the Privy Council: see Constitutional and Administrative Law by Wade and Phillips (9th Edn.) page 230. He, therefore, takes the Privy Councillor's oath the substance of which is set out in a footnote in 8 Halsbury's Laws (4th Edn.) para 1149, page 708. Amongst other things; it requires the Privy Councillor ‘to keep secret all matters revealed or treated of in the Council’ and ‘not to reveal matters so treated of touching any of his colleagues without the consent of the Sovereign of Council’. In India, the Constitution itself prescribes an oath of secrecy which must be administered ‘Before a Minister enters upon his office’.

In Attorney-General v. Jonathan Cape Ltd. and others, (1976) 1 Q.B. 752(36), a case to which I will return a little later, there are extracts from a speech made by Viscount Hailsham in the House of Lords in 1932 in the course of a debate on Cabinet secrecy. It bears very directly on the point. Viscount Hailsham said:

‘But, my Lords, I am very glad that the question has been raised because it has seemed to me that there is a tendency in some quarters at least to ignore or to forget the nature and extent of the obligations of secrecy and the limitations which rigidly hedge round the position of a Cabinet Minister. My noble friend has read to your Lordships what in fact I was proposing to read, that is, the Oath which every Privy Councillor takes when he is sworn of His Majesty's Privy Council. Your Lordships will remember that one reason at least why a Cabinet Minister must of necessity be a Member of the Privy Council is that it involves the taking of that Oath. Having heard that Oath read your Lordships will appreciate what a complete misconception it is to suppose as some people seem inclined to suppose, that the only obligation that rests upon a Cabinet Minister is not to disclose what are described as the Cabinet's minutes. He is sworn to keep secret all matters committed and revealed unto him or that shall be treated secretly in Council.’

In the last extract from his speech, he said:

It is absolutely essential in the public interest that discussions which take place between Cabinet Ministers ‘shall take place in the full certainty of all of them that they are speaking their minds with absolute freedom to colleagues on whom they can explicitly rely, upon matters upon which it is their sworn duty to express their opinions with complete frankness and to give all information without any haunting fear that what happens may hereafter by publication create difficulties for themselves or, what is far more grave may create complications for the King and country that they are trying to serve. For those reasons I hope that the inflexible rule which has hitherto prevailed will be maintained in its integrity, and that If there has been any relaxation or misunderstanding, of which I say nothing, the debate in this House will have done something to clarify the position and restate the old rule in all its rigour and all its inflexibility.’

That shows that the oath is both ‘rigorous’ and ‘inflexible’, and is ‘absolutely essential in the public interest’.

I think, I have said and quoted enough to establish the vital importance of the oath of secrecy in the functioning of a Cabinet system is gone. A central pillar in the structure of the Constitution is made to crumble.

Then, the question arises, what is the ‘penalty’ for breach of the oath? The Constitution provides no answer. If the President violates the Constitution, he can be ‘impeached’: see Article 61. The Vice-President can be ‘removed’ by a resolution of the Council of States: see Article 67(b). So can the Deputy Chairman of the Council of States: see Article 90(c). The Speaker and the Deputy Speaker can be ‘removed’ by resolution of the House of the People: see Article 94(c). A judge of the Supreme Court can be ‘removed’ in accordance with the procedure laid down in Article 124(4). It is the same for a judge of the High Court: see Article 217(1)(b). And, also, the Comptroller and Auditor General: see Article 148(1). But, in the case of a Minister, the Constitution provides neither for ‘impeachment’ nor ‘removal’. Of course, he holds office ‘during the pleasure of the President’ as stated in Article 75(2), but he suffers no ‘penalty’ for being unfaithful to the Constitution.

What about the official Secrets Act 1923? We analysed and discussed section 5 of that Act in great detail. It is a long, cumbrous and confusing section, and I need not quote it. The equivalent section in the English statute of 1911, on which the Indian Act is based, has been described blunty by the Franks Committee, set up 1971, as ‘a mess’. I would endorse that vie wholeheartedly in respect of section 5. Nevertheless, I agree with Mr. Venugopal that section 5 is not in any manner connected with the oath of secrecy, nor is it enacted to punish for breach of that oath. It could not be, because the Constitution was passed in 1950 and the Act is of 1923. It is possible, though I am not expressing any final opinion on the point, that a Minister by ‘communicating or revealing’ any matter coming within the oath thereby also commits an offence under section 5, provided the requirements of that section are fulfilled. But, he commits the offence not because he violated the oath, but because the comes within the terms of that section. Even if there were no oath for secrecy, the offence would be committed. All it comes to is this, that a part of the area covered by the oath is also covered by the section. Where they overlap, the apply simultaneously, though independently of each other. But where they do not overlap, the oath remains uncovered by the section. The broad conclusion is that section 5 of the Official Secrets Act does not make breach of the oath of secrecy, as such, an offence.

No other provision of law could be discovered providing a penalty for breach of the oath. Does that mean that the oath is not binding? Mr. Venugopal said that the oath was only ‘morally’ binding, and the Constitution was content merely to ‘trust’ a Minister. I am reminded of Lord Action's dictum, which is justly famous, but unfortunately is remembered only in part. The full version is:

‘Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men even when they exercise influence and not authority. There is no worse heresy than that the office sanctifies the holder of it.’

Lord Action had made a deep study of history.

Browsing through the Debates of the Constituent Assembly will convince anyone that the members were wise and experienced men of the world. They were not ready to given any ‘discretion’ to the President or the Governor. Could their approach to a Minister have been different?

In my opinion the whole of argument is wrong. All that it proves is that the law has not yet provided any penalties, in the sense of punishment, for breach of the oath of secrecy. But the law does not cease to be the law because the breach of it is not made an offence. Everyday contracts are enforced in a court of law though their breach is not a crime. The same is the position in most actions in tort. In fact, I would say that the majority of legal obligations do not entail penal consequences. Yet, they are enforceable at law. Take an example from the Constitution. Denial of equality by the State does not make it subject to prosecution. Does that mean that Article 14 is not enforceable? Or, again, denial of equality of opportunity is no offence: does that mean that Article 16 is not binding? It is unnecessary to multiply examples. That fallacy in the reasoning is that it makes the enforceability of the law dependent on penal consequences. If that argument were right, then it would be necessary for the law to make the breach of every known legal obligation a crime to ensure that it was binding. Yet, every legal system is reluctant to enlarge the body of crimes. If the reasoning were right, even the oath of office which a Minister takes would not be binding. There is no law, either, making the breach of that oath an offence.

The Constitution is the highest law in this land. All other laws spring from it. The Constitution extracts the oath of secrecy from a Minister before it lets him ‘enter upon his office’. According to the argument, thereafter the Constitution is at the mercy of the Minister. He may breach the oath in full confidence that no court will hold that it is ‘legally’ binding. I think, the true position is exactly the other way. Judges are sworn to ‘bear true faith and allegiance to the Constitution of India’. What kind of faith and allegiance would it be if a judge were to say that the oath which the Constitution, his master, extracts from a Minister, is not binding? I have no doubt that if I were to say that the oath of secrecy is not binding I would be untrue to my own oath. So, my answer is, that whenever and wherever the question arises, and howsoever it may arise, every court is bound to hold that the oath is binding. But why only a court? No doubt judges are specially sworn to ‘bear true faith and allegiance’ to the Constitution. That does not absolve is bound to uphold the Constitution. He does not do that by making the oath of secrecy a mere formality to be disregarded according to the dictates of the moment.

There has never been a case in which the oath of secrecy was directly under consideration. At least the researches of counsel have not revealed any. But there is one case, cited by Mr. Bhatia, which I have found very useful. It is Attorney-General v. Jonathan Cape Ltd. and others, (1976) 1 Q.B. 752. Mr. Richard Crossman was a Cabinet Minister in the Labour government of 1964 to 1970. During this period he kept a detailed diary, and this was within the knowledge of his colleagues in the Cabinet. After his death, his literary executors sought to publish the diaries. In accordance with convention, the permission of the Secretary of the Cabinet was sought. (It is mentioned in the judgment that even ‘Sir Winston Churchil submitted the whole of his manuscripts concerned with the war years, and accepted the advice given by the Secretary of the Cabinet as to publication’.) After perusing a photocopy of the typescript, the Secretary of the Cabinet, Sir John Hunt, did not agree to the publication of the diaries. The reasons which he gave in a letter to the publishers are worth noticising:

‘The conventions which in the public interest govern the publication of works by former Ministers have evolved over many years and been accepted by successive administrations. They flow from the two complementary principles of the collective responsibility of the Government as a whole and the personal responsibility of individual Ministers.

As regards the first of these, the cabinet meets in secret and the records of its proceedings are secret until of historical interest only when they become available to public scrutiny under the Public Records Act, 1967. Only in this way can completely frank discussion take place between Ministers in the Cabinet and in Cabinet Committees without the risk of extraneous pressure and controversy. It has also always been held vital for good government that other confidential communications between Ministers, or between Ministers and their senior civil servants, should be protected from untoward disclosure. This is not a matter which depends upon the Official Secrets Act…It is based upon the inherent needs of government, and the mutual trust which needs to exist between Ministers and between Ministers and their senior advisers. It is an essential feature of the doctrine of collective responsibility which is at the centre of our system of government. To put it another way, Ministers will not feel free frankly to discuss and to surrender their personal and departmental preferences to the achievement of a common view, nor can they be expected to abide by a common decision, if they know that the stand they have taken and the points they have ‘surrendered will sooner rather than later become public knowledge. Since Cabinet government depends on the mutual confidence of collective responsibility, it basis can be eroded by the premature disclosure of what has passed within the confidential relationship.’

That is a very lucid statement of the reasons for the oath of secrecy. It explains how the very ‘basis’ of Cabinet government can be ‘eroded’ by ‘premature disclosure’.

To return to the narrative of the case, the literary executors and publishers decided to ignore Sir John Hunt's ‘advice’ and proceed with the publication. The Attorney General then brought two actions seeking injunctions to restrain them.

Lord Widgery, C.J., tried the actions. It appears from the judgment that the Attorney General based his case on the doctrine of ‘confidentiality’ developed by the English common law. Cabinet papers and proceedings, it was said, were of a ‘confidential character’. Evidence was called ‘from eminent former holders of office to the effect that public interest requires a continuing secrecy’. The speech by Viscount Hailsham, which I have quoted above, was cited in evidence. It is expressly mentioned in the judgment that the oath taken by Mr. Crossman as Privy Councillor was not ‘seriously relied upon’, presuambly for the reason that he was no longer alive and was not being sued. Therefore, this case does not run on the oath of secrecy. It proceeds only on the doctrine of ‘confidentiality’.

So far as that doctrine is concerned, it requires the court to balance various rival considerations of public interest, and then reach a judgment. That appears from the report at page 765 of the argument by the Attorney General, and the following passage in the judgment:

'I do not understand Lord Salmon to be saying, or the Attorney-General to be contending, that it is only necessary for him to evoke the public interest to obtain an order of the court. On the contrary, if must be for the court in every case to be satisfied that the public interest is involved, and that, after balancing all the factors which tell for or against publication, to decide whether suppression is necessary.'

Lord Widgery seems to have refused to injunctions on the ground that '11 years (had) expired since the first recorded events' and there was nothing in the diaries which ‘would inhibit free discussion in the Cabinet of today’. Nevertheless, he was clearly of the view that in a proper case an injunction could be granted. This is what he said:

‘I cannot see why the courts should be powerless to restrain the publication of public secrets, while enjoying the Argyll powers in regard to domestic secrets. Indeed, as already pointed out, the court must have power to deal with publication which threatens national security, and the difference between such a case and the present case is one of degree rather than kind. I conclude, therefore, that when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the curt, and his obligation is not merely to observe a gentlemen's agreement to refrain from publication.

And, again, a page afterwards he said:

‘Applying those principles to the present case, what do we find? In my judgment, the Attorney-General has made out his claim that the expression of individual opinions by Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the publication of which can be restrained by the court when this is clearly necessary in the public interest.’

I think that clearly demolishes Mr. Venugopal's argument that the oath of secrecy is not legally enforceable and is a mere ‘gentleman's argument’. And, that case was not based on any statutory provision. Here, I am concerned with a provisions in the Cabinet secrecy. In one place he says:

‘I cannot accept the suggestion that a Minister owes no duty of confidence in respect of his own views expressed in Cabinet. It would only need one or two Ministers to describe their own views to enable experienced observers to identify the views of the others.’

And, at another:

‘The maintenance of the doctrine of join responsibility within the Cabinet is in the public interest, and the application of that doctrine might be prejudiced by premature disclosure of the views of individual Ministers.’

He even repeats it whilst ultimately refusing the injunctions:

‘It is unnecessary to elaborate the evils which might flow if at the close of a Cabinet meeting a Minister proceeded to give the press as analysis of the voting, but we are dealing in this case with a disclosure of information nearly 10 years later.

Before, I leave this case, there is one other point to be derived. It will be remembered that according to the Privy Councillor's oath, matters which are secret may be revealed with the consent of the Sovereign or the Council. Lord Widgery holds that even the Cabinet cannot release a member from his oath:

‘Furthermore, I am persuaded that the nature of the confidence is that spoken for by the Attorney-General, namely, that since the confidence is imposed to enable the efficient conduct of the Queen's business, the confidence is owed to the Queen and cannot be released by the members of Cabinet themselves. I have been told that a resigning Minister who wishes to make a personal statement in the House, and to disclose matters which are confidential under the doctrine obtains the consent of the Queen for this purpose.’

But in India, as I have already tried to show, there is no power in anyone to release from the oath.

Mr. Venugopal concentrated only on the result of that case. the reasoning is entirely against him. Besides, in England there is no written Constitution, and a great deal of the area is controlled by conventions, some of which are vague and not clearly settled or defined. There is no such problem here. The Constitution puts the matter beyond all doubt.

I an now turn to the opinion given by the Law Ministry to the Commission. It reads as follows:

‘Opinion of Law Ministry

Dated: 28-9-1977

A Commission of Inquiry has all the powers of a Civil Court, such as summoning and enforcing the attendance of persons and examining them on oath. A Commission also, when ‘empowered, may require any person, subject to any privilege which may be claimed by that person, under any law for the time being in force, to furnish all such points or matters as in the opinion of the Commission may be useful or relevant to the subject-matter of the inquiry.

2. In the event of a former Minister, summoned to give evidence before a Commission of Inquiry, there is no question as rightly pointed out by Shri Vaze, of his violating the provisions of section 5 of the Official Secrets Act.

3. Section 6 of the Commission of Inquiry Act also provides that no statement, made by person in the course of making evidence before a Commission, shall subject him to or be used against him in any civil or criminal proceedings except a prosecuting for giving false evidence by such statement.

4. The further question arises as to whether an ex-Minister could refuse to give information on the ground that giving the information would be a violation of his oath of secrecy as a Minister for the Union.

5. In so far as this is concerned, it may be pointed out that no legal sanctions, apart from the Official Secrets Act, attach to the breach of the oath. That apart, the oath by its very nature would appear to operate only to a case of voluntary or unauthorised disclosure of information, and not disclosure of information in pursuance of one's duties or under compulsion of law.

6. It is true that Cabinet papers and the like are treated as documents relating to the affairs of State, the production of which is not permitted under section 123 of the Evidence Act and consequently even giving of parole evidence with regard to their contents is not allowed. A claim of privilege may, therefore, be raised.

7. It is however, relevant that what the section as also the oath of office seek to protect are the public interests and not the interests of any individual. The privilege against disclosure is the privilege of the State on the ground that the public interest requires that the document should not be produced or the information should not be furnished.

8. It is not a privilege available to an individual who can try to seek shelter under it if he feels that giving of information or answering the question would be embrassing or inconvenient to him.

9. It is always open to the State to waive its privileges in respect of a document or information if it considers that the larger public interest requires that though certain information is, by its nature, usually kept secret, yet in certain circumstances, divulging it would serve a larger public interest.

10. As pointed by the Supreme Court in the State of Uttar Pradesh v. Raj Narain and others (AIR 1975 SC 865), the foundation of the law behind the claim for privilege is that injury to the public interest is a reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public or national interest.

11. If this test is a kept in mind then the difficulty would not arise if in any particular case it is considered that the public interest requires case it is considered that the public interest requires that a former Minister should freely and frankly depose relating to matters which he had come to know in his official capacity. It would be open to the Government, if a reference is made to it in that connection, to waive the privilege.

12. The right to withhold information or document is not that of the individual summoned out of the State.

13. It would, therefore, follow that it is not open to a former Minister to refuse to answer questions or to disclose information unless his stand is supported by the Government. It is open to the State, in appropriate cases, to waive its privilege if the larger public interest requires it. In this connection, the Home Ministry's instructions of the 16/17th August, are relevant.

14. It has not been considered necessary to discuss the English practice referred to in the preceding note for they related to cases wherein an ex-Minister sought to divulge information and the Government wanted to restrict. The present case is the reverse, namely, where an ex-Minister declined to give information on the ground that it is confidential and Government takes a different view.’

The first ground on which this opinion proceeds is that there is no ‘legal sanction’ for breach for breach of the oath of secrecy. I have said enough to expose the fallacy underlying that reasoning, and do not propose to say more.

Secondly, the distinction sought to be drawn in paragraph 5 between ‘voluntary’ disclosure and that under ‘compulsion of law’ is based on the assumption that there can be such compulsion. As I have tried to show, no judge, if he is true to his oath, will induce or coerce a Minister to violate his oath, or even allow it. Both the judge and the Minister are equally bound to uphold the Constitution. Likewise, no court can sit limply by whilst a public servant or a citizen induces or coerces a Minister to violate his oath. It would be the duty of the court to see that the Constitution is not subverted and restrain the breach of the oath. So, the distinction sought to be made in paragraph 5 of the opinion is based on a false hypothesis.

Thirdly, in paragraph 6, the oath is classed as a ‘privilege’ on the analogy of section 123 of the Indian Evidence Act. It is manifect from the words of the oath that, far from creating a ‘privilege’, it creates a ‘rigorous’ and ‘inflexible’ obligation. That is why Mr. Mukherjee said: ‘I am not claiming any privilege…….I would like to be protected’. He understood his obligation.

Fourthly, proceeding on the premise of a ‘privilege’, the theory is set up, in the succeeding paragraphs, that since the oath of secrecy is intended to serve the public interest, the State can ‘waive its privilege if the larger public interest requires it’. That is utterly wrong. There are no words in the oath giving scope for any such proposition, and the opinion refers to none. I have quoted the Debates in the Constituent Assembly, and the oath itself is clear and categorical. No one in India, not even the President, has the power to waive the oath. The makers not even the President, has the power to waive the oath. The makers of the Constitution have decided what the public interest is once and for all. On the oath of secrecy rests the very existence of the Cabinet system, and its continuance, it was realised, cannot be allowed to depend on the passing needs of Government or individuals.

Furthermore, the observation that an individual Minister cannot take ‘shelter under’ the oath shows that the Ministry has not idea what the oath is all about. The oath is for the preservation of the Constitution itself, and there can be no higher public interest. The need to punish or expose delinquent Ministers, who after all are only birds of passage, cannot conceivably justify undermining or causing harm to the Constitution, which is more permanent.

In my judgment, the opinion of the Law Ministry was outrageously wrong. Its superficiality is stunning. The learned men in the Law Ministry looked only at the Official Secrets Act and the Indian Evidence Act. Their eyes never lifted towards the Constitution at all. Not one single Article of the Constitution is mentioned. No one seems to have opened a book on Constitutional law to find out the reason for the oath. To them the fundamental principle of collective responsibility, so vital for the existence of the Cabinet system, was unknown. I suppose, to expect them to consult the Debates of the Constituent Assembly would be asking for far too much. No one seems to have been unduly perturbed whilst giving the opinion that an oath, prescribed by the Construction, could be ‘waived’ by the State when the oath contained no words to warrant it. Thus, by one indifferent stroke the Law Ministry would have felled the entire Constitutional structure in this country.

The Chairman gave no reasons of his own in support of his ruling. He relied only on the opinion of the Law Ministry. All the errors and fallacies in the reasoning of the Law Ministry are, therefore, incorporated in his ruling. I hold, that the ruling was wholly contrary to and in violation of the Constitution.

Mr. Venugopal said that Mrs. Gandhi and Mr. Mukherjee should have raised objections to individual questions as and when they were asked. He says, they could have objected to those which were covered by the oath. I think, the position is altogether different. The Chairman ‘ruled’ that the oath was not binding and, therefore, made it plan that he would be asking questions on matters within the oath; and, also, by that ruling, he directed that those questions must be answered. Not only had an objection been raised, but a ruling had also been given; not once, but three times.

In my opinion, by giving that ruling the Chairman acted in violation of the Constitution or, at the very least, intimated that he intended so to act. If a person announces that he intends to follow an unconstitutional procedure, it seems plain to me that his jurisdiction is forfeited. He is no longer acting ‘in discharge of the duties imposed or in exercise of the powers conferred’ upon him by law. Nor is he exercising ‘legal powers’. And, with regard to the ‘matters’ within the oath of secrecy, Mrs. Gandhi and Mr. Mukherjee could not be ‘lawfully examined’. Most, if not all, the ‘items’ in the summonses and notices seem to fall in that category.

For these reasons also, I hold, that by their refusals, neither Mrs. Gandhi nor Mr. Mukherjee committed any offences.

The Case of the Four Officers

Whilst dealing with the Ruling of 10th January 1978, I have briefly indicated what the ‘case of the four officers’ was about. It was item 3 in in the summons and the notice sent to Mrs. Gandhi. There are two dates which are material. The question in Parliament was answered on 16th April 1975. The declaration of Emergency was made by the President on 25th June 1975. Even according to the allegations, all the ‘C.B.I. cases’ were instituted against the four officers between the middle of April and the first week of May 1975.

By the terms of reference, the Commission was authorised to inquire into ‘exceses, malpractices and misdeeds during the Emergency or in the days immediately preceding the said proclamation’. The case against the four officers were not instituted ‘during’ the emergency, nor in the days ‘immediately preceding’ the Proclamation. When the objection was raised before the Chairman that, under the terms of reference, he had no jurisdiction to inquire into the matter, he conceded that if ‘a transaction (was) completed before 25th June 1975, it would certainly not be open to (him) to probe that question’. But he then went on to qualify that statement by amplifying what he meant by ‘completed’. He said:

‘But where a transaction is commenced before 25th of June, 1975 or shortly before that and it has continued or its effect has been suffered by anyone during the period 25th of June 1975 and the lifting of the emergency, it is in my opinion open to me to go into that question and to determine whether or not there has been any excess committed.’

The word ‘transaction’ does not occur in the terms of reference. In its ordinary acceptation it is hardly the appropriate word to describe ‘excesses, malpractices and misdeeds’. Paragraph 2(a)(i) of the terms of reference speaks of ‘excesses and/or malpractices comfitted during the period when the Proclamation of Emergency made on 25th June, 1975 under Article 352 of the Constitution was in force or in days immediately preceding the said Proclamation’. It echoes the words in paragraph 1 and uses the word ‘committed’. So to decide whether an ‘excess, malpractice or misdeed’ comes within the terms of reference the only relevant question is, when was it committed. On that test the ‘case of the four officers’ is obviously not within the terms of reference. The ‘C.B.I. cases’ were instituted against them in Apri1/May 1975, nearly two months before the Declaration of Emergency. Those cases certainly had nothing to do with the emergency, because in April 1975 even Mrs. Gandhi would not have foreseen it.

There is no support in the terms of reference for the view that if a transaction ‘has continued or its effect has been suffered by anyone during’ the emergency, the Commission can inquire into it. The Chairman does not explain from where he get those propositions. In any case, the concepts are so vague that hardly anything would be excluded. The effects of an action may be ‘suffered’ by someone or other for generations. There is a theory that we are still ‘suffering’ for what Adam did. Then terms of reference cannot possibly bear such a sweeping interpretation, nor could they have been so intended.

I am fortified in my conclusion by a ruling given by the Speaker in the House of the People on 16th November 1977. In respect of the same matter, the ‘case of the four officers’, a motion for breach of privilege was moved against Mrs. Gandhi in the House. In the course of the debate, one member raised the objection that since the matter was being inquired into by the Shah Commission it was sub-judice, and it would not be right for the House to treat it ‘as a matter of privilege’. I quote from the Third Report of the Committee of Privileges (Sixth Lok Sabha) at page 13:1

‘38. Shri Vasant Sathe, M.P., raised the point that under rule 224 of the Rules of Procedure and Conduct of Business in Lok Sabha, a question of privilege should be restricted to a specific matter of recent occurrence. In this connection, he stated, inter alia, as follows:-

'The matter must be or recent occurrence. It has come to light today. If it is a matter of old occurrence, then can this House dig up a matter which is already being inquired into? Another thing I would like to know is that the matter is sub-judice. It is being inquired into by the Shah Commission. The Shah Commission is yet to given its Report. Can you consider this as a matter of privilege.

The Speaker, thereupon, ruled as follows:-

'Please let me give a ruling. It is a point of order; it is not a debate. I have considered both the points raised by Mr. Sathe before according my consent. So far as the point that it must be a matter of recent occurrence is concerned, the question is that it has not been definitely decided. Authorities have taken the view that when a matter come to light at a later stage, Parliament has a right to take it into consideration. As far as the Shah Commission aspect is concerned, these also I have gone through the entire matter. I have gone through the terms of reference of the Shah Commission. They are confined to Emergency Excesses and matters connected with them. This event has taken place much earlier than the declaration of the Emergency. Therefore, I thought it was not necessary to go by that consideration.' ’

It will be seen that the Speaker has given his ruling after having ‘gone through the entire matter’ and ‘considered’ it. He intimates that he has studied ‘the terms of reference of the Shah Commission’. His conclusion is that ‘They are confined to Emergency Excesses and matters connected with them’. As regards the matter in hand, namely, the ‘case of the four officers’, the Speaker says: ‘This event has taken place much earlier than the declaration of the Emergency’. It is on ‘reaching this conclusion that the Speaker allowed the motion to proceed. Had he come to the conclusion that the matter was within the terms of reference of the Shah Commission, it is possible that he may have ruled out the motion.

I respectfully agree with the ruling given by the Speaker, who I may say, was Mr. K.S. Hegde, retired Judge of the Supreme Court. That ruling was given nearly two months before the Chairman gave his ruling on 10th January 1978. In his Interim Report I the Chairman has dealt with the ‘case of the four officers’ on pages 59 to 64, and has found against Mrs. Gandhi.

Mr. Venugopal suggested that the ‘case’ would be covered by paragraph 2(b) of the terms of reference read with paragraph 2(a)(i). That is an untenable argument. Paragraph 2(b) enables the Commission ‘to consider such other matters’ which in its opinion ‘have any relevance to the aforesaid allegations’, there is nothing to which paragraph 2(b) can attach. To meet that difficulty, Mr. Venugopal said the ‘case’ came within paragraph 2(a)(i). If it did, there would be no need to resort to paragraph 2(b). But, as I have already pointed out, the periods of time specified in paragraph 2(a)(i). If it did, there would be no need to resort to paragraph 2(b). But, as I have already pointed out, the periods of time specified in paragraph 2(a)(i) are the same as in paragraph 1. The ‘case of the fur officers’ is not within those periods of time.

Therefore, I hold, that item 3 in the summons and to notice sent to Mrs. Gandhi was not within the terms of reference, and the Commission had no power or jurisdiction to inquiry into it. For the same reason, Mrs. Gandhi could not be ‘lawfully examined’ regarding that ‘subject’.

Whether the Commission could Inquire into the ‘Circumstances’ or ‘Manner’ in which ‘Advice’ was ‘Tendered’ to the President to Declare an Emergency?

The power to declare and Emergency is given by Article 352 of the Constitution. By the Constitution (Thirty-Eight Amendment) Act 1975 that Article was amended with retrospective effect. The amendment added two new clauses, numbered (4) and (5), and said they ‘shall be deemed always to have been inserted’. There was a further amendment by the Constitution (Forty-Second Amendment) Act 1976. Some words were added in clauses (1) and (2)(a), and a new clause (2A) was inserted. The whole of that Article was drastically amended by the Constitution (Forty-Fourth Amendment) Act 1978 which received the assent of the President on 30th April 1979. However, the Central Government had to notify the dates on which the different provisions of that Act would come into force. The amended Article 352 was brought into force on 20th June 1979 by a notification published on 19th June 1979. Since, at all the relevant times with which I am concerned, Article 352 stood in the form in which it existed before the Forty-Fourth Amendment, I will deal with the Article as it then stood. In other words, for the present purpose, the Forty-Fourth Amendment must be ignored.

The Article reads as follows:

‘(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

(2) A Proclamation issued under clause (1)-

(a) may be revoked or varied by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of parliament:'

Then there is a proviso which is not material. Nor is clause (2A). The remaining three clauses read as follows:

‘(3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.

(4) The power conferred on the President by this article shall include the power to issue different Proclamation on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.

(5) Notwithstanding anything in this Constitution,-

(a) the satisfaction of the President mentioned in clause (1) and clause (3) shall be final and conclusive and shall not be questioned in any court on any ground;

(b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of-

(i) a declaration made by Proclamation by the President to the effect stated in clause (1); or

(ii) the continued operation of such Proclamation.’

Clause (5) is the one that is pertinent to the present question. It has two sub-clauses. The broad difference between the two is that whereas sub-clause (a) pertains to the ‘satisfaction’ of the President, sub-clause (b) deals with the ‘validity’ of the ‘declaration’ and its ‘continued operation’.

Sub-clause (a) says two things: first, that the ‘satisfaction’ of the President ‘shall be final and conclusive’; second, that the ‘satisfaction’ shall not be ‘questioned’ ‘in any court on any ground’. Mr. Venugopal submitted that this sub-clause excluded only the jurisdiction of ‘courts’ and not ‘tribunals’. That is not correct. The first part does not use the word ‘court’. It is, therefore, of universal application. Whatever be the forum, the ‘satisfaction’ of the President has to be treated as ‘final and conclusive’. The reason for the second part is abundant caution. Its object is to forestall the ingenuity of lawyers in agitating the question in court on some unforeseen or collateral ‘ground’. Even without it, the same result would flow from the first part. But, the second part makes assurance doubly sure. It is a common drafting device. The Romans had a name for it: ‘ex abundanti cautela’. The conclusion is that neither a court nor a tribunal nor anyone else can inquire into the ‘satisfaction’ of the President, and is bound to accept it as ‘final and conclusive’.

Sub-clause (b) is complementary to sub-clause (a). It bars all courts, including the Supreme Court, from entertaining any question as to the ‘validity’ of the ‘declaration’. Since only a court has the power to rule upon the ‘validity’ of the ‘declaration’, hence this sub-clause is opening words: ‘subject to the provisions of clause (2)’. Probably, the court can inquire whether the Proclamation has been ‘revoked or varied’ or ‘laid before each House of Parliament’ or ‘approved by resolution of both Houses’.

Taking the two sub-clauses together, the conclusion is clear and inescapable that no court or tribunal inquire into the ‘satisfaction’ of the President or, subject to the one exception I have indicated, the ‘validity’ of the declaration. The reason for these provisions is quite obvious. Whether an Emergency should be declared or not, is a political decision. That is an area into which the courts steadfastly refuse to tread. In Bhut Nath Mete v. The State of West Bengal, (1974) 3 S.C.R. 315(37), when an attempt was made to question the Declaration of Emergency made in 1971, the Supreme Court ‘summarily’ rejected the argument and said:' ……this is a political, not justiciable issue and the appeal should be to the polls and not to the courts'. It was also said that the ‘validity of the Proclamation turns on the subjective satisfaction of the President’.

Even apart from the provisions of the Constitution, there is a general principle of law that courts do not entertain political questions. In Bhut Nath Mete's case, to which I have just referred, it was observed that ‘political questions fall outside the area of judicial review’. So, even without the provisions in the Constitution, the legal position would be almost the same. This was recognised in Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 S.C. 1207(38), in the following passage from the judgment of one of the judges who formed the majority:

‘The President declaration of emergency is made final, conclusive and non-justiciable by clause (5) of Article 352, which was introduced by the 38th Amendment retrospectively. But apart from the fact that the Constitution itself has given finality to declaration of emergency made by the President, it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations. The facts and circumstances leading to the declarations. The facts and circumstances leading to the declaration of emergency are and can only be known to the Executive, particularly when an emergency can be declared, as provided in Article 352(3), before the actual occurrence of war, external aggression or internal disturbance, so long as the President is satisfied that there is imminent danger thereof. The actual occurrence of war or external aggression or internal disturbance can be there for anyone to see but the imminent danger of these occurrences depends at any given moment on the perception and evaluation of the national or international situations, regarding which the court of law can neither have full and truthful information nor the means to such information. Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law. The High Courts whose judgments are under appeal have, with the greatest respect, failed to perceive this limitation on the power of judicial review, though in fairness to them it must be stated that none of them had held that the declaration of emergency is open to judicial scrutiny.’

Alongside Article 352 one must read Article 74. It will be remembered that clause (2) of Article 74 says: ‘The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into by any Court’. This is another safeguard for the Cabinet system. It establishes Constitutional unity between the President and the Council of Ministers. Whilst Article 74(1) directs the President to ‘act in accordance’ with the advice tendered by the Council of Ministers, Article 74(2) prevents the advice from being publicly known. Even if there be, in fact, difference or antagonisms between the President and the Council of Ministers, the Constitution effaces them. it creates a legal amity not always unattainable in life. The operating factor behind it all is the Cabinet system.

Now let me go back to Article 352. The ‘satisfaction’ of the President has, in view of Article 74(1), to be based on the ‘advice’ of the Cabinet. Thus, the ‘satisfaction’ of the President is, in fact, the ‘satisfaction’ of the Council of Ministers. This is expressly stated in Samsher Singh v. State of Punjab and another, AIR 1974 S.C. 2192(39) in the following passage:

‘The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires that satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President of Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under ‘rules of business made under any of these two Article 77(3) and 166(3) is the decision of the President or the Governor respectively. These article s did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.’

Hence, in effect, clause (5) of Article 352 makes the ‘satisfaction’ of the Council of Ministers ‘final and conclusive’. It is beyond inquiry by court or tribunal. This position is further buttressed by Article 74(2) which prevents the advice they tendered to the President from being made known.

So great is the anxiety of the Constitution to preserve collective responsibility and the unit of the Government, that even the rules allocating the business of the Government of India among the Ministers are not available for scrutiny. In clauses (3) and (4) of Article 77 it is provided as follows:

‘(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.

(4) No Court or other authority shall be entitled to require the production of any rule made under clause (3) for the more convenient transaction of the business of the Government of India.’

The prohibition in clause (4), it will be observed, is addressed not only to a court but also to every ‘other authority’.

Mr. Venugopal called in aid State of Rajasthan and others v. Union of India, AIR 1977 S.C. 1361(40) which was actually cited by Mr. Bhatia. It turns on Article 356 of the Constitution, Clause (1) of that Article provides that-

‘(1) If the President on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation……’

and then there are a number of sub-clauses setting out the powers he may exercise. I omit them, and three succeeding clauses, because only clause (5) is relevant. It reads as follows:

‘(5) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground.’

The words of this clause are practically identical with those in sub-clause (5) of Article 352. According to Mr. Venugopal, the Supreme Court held that clause (5) would not ‘protect’ a proclamation ‘made mala fide or on extraneous or irrelevant grounds’. That is far from accurate. On the contrary all the judges were agreed that the court could not question the ‘sufficiency of grounds’ on which the proclamation was made. They were all further agreed that the ‘satisfaction’ of the President was ‘subjective’ and the court could not go into ‘political’ questions. It is true that some of the judges did say that the proclamation could be challenged on the ground that it was ‘mala fide or based on wholly extraneous and irrelevant considerations’; but they made it clear that this was possible only if such a ground could be established from what was stated in the proclamation itself of in the reasons disclosed by the Government. They accepted this proposition as a theoretical possibility, but added that it was hardly ever likely to happen in practice. They were all agreed that the court could not probe into the matter ‘at any greater depth’. There is nothing in this case which would justify an inquiry into the reasons for the President's ‘satisfaction’ or their ‘validity’. If the Supreme Court had so ruled, then clause (5) would have been rendered nugatory, and the words ‘final and conclusive’ would lose all meaning. It was not suggested to the Supreme Court that the clause was invalid.

In view of these various provisions in the Constitution, the Commission was prohibited from inquiring into the ‘satisfaction’ of the President resulting in the Declaration of Emergency. The Commission would bound to accept the ‘satisfaction’ as ‘final and conclusive’. If perchance the terms of reference had required the Commission to inquire into the ‘satisfaction’ of the President, to that extent they would have been unconstitutional and invalid. Besides, it would have been tantamount to referring a ‘political’ question for inquiry by the Commission. And furthermore, it would not even qualify as a ‘definite matter’ for inquiry as required by section 3 of the Commission of Inquiry Act. Despite any ‘fact-finding’ a political issue can only produce a political answer. There is little that is ‘definite’ about politics.

Nonetheless, the Commission held that the terms of reference did require it to inquire into the question whether the Declaration of Emergency ‘amounted to an excess’. Mr. Venugopal supported that position. Like the Commission, he relied upon paragraph 2(a)(i) of the terms of reference. I think, the argument is quite unsound. In the first place, there was no complaint before the Commission, which I have already held to be a condition precedent to the holing of an inquiry into any matter coming within the terms of reference. Even in its report the Commission does not mention that any complaint was received in which it was alleged that the Declaration of Emergency was an excess. Therefore, even under the terms of reference there was no jurisdiction to initiate an inquiry into that matter. Secondly, paragraph 2(a)(i) would not cover the ‘circumstances’ and ‘manner’ in which the President arrived at his ‘satisfaction’. The only words in that paragraph on which Mr. Venugopal relied were: ‘subversion of …well established conventions’. But what was the ‘convention’ which was allegedly subverted he was unable to define or even indicate. For those words to apply there must first be a convention which is ‘well-established’. That has to be starting point and then the inquiry is into the question whether it was ‘subverted’.

There is also a more general consideration which militates strongly against the argument of Mr. Venugopal. Surely, if it was desired by the Central Government that the Commission should inquire into the ‘satisfaction’ of the President, there would be a specific term in the reference to that effect. Is it likely that so important a matter would be left to be gathered from the generality of the words in paragraph 2(a)(i)? Moreover, there are specific indications that such a question was never intended to be referred. Mr. Bhatia has produced the authorised copies of the Debates in the Lok Sabha on 1st April 1977, 24th June 1977 and 22nd July 1977. In none of the debates did any member suggest that the Commission should inquire into the Declaration of Emergency and the ‘satisfaction’ of the President. Mr. Venugopal could not point to any such suggestion having been made by any member.

There is a good reason why no member would make such a suggestion, and why the House of the People would not countenance it. It will be remembered that under Article 352(2) of the Constitution, the Proclamation has to be ‘approved’ by both Houses of Parliament within two months, otherwise it ‘shall cease to operate’. The Proclamation issued by the President on 25th June 1975 was ‘approved’ by both Houses of Parliament. It thus became a thing done by Parliament itself. No one can sit in judgment over the actions of Parliament, and certainly Parliament would not allow anyone to exercise such suzerainity. To allow a Commission to inquire into the ‘satisfaction’ of the President would have meant allowing it to inquire into the ‘approval’ by Parliament. The Commission would thus be able to sit in judgment over Parliament at the behest of the Central Government. The Executive could then control the Legislature. It is understandable that no member would tolerate or even be willing to contemplates such a position. It is not surprising, therefore, that no one was prepared to allow the Commission a jurisdiction which would enable it to criticise not only the ‘satisfaction’ of the President, but, in the process, also, the ‘approval’ by Parliament.

For all these reasons, I am convinced that not only did the terms of reference not authorise the Commission to inquire into the Declaration of Emergency or anything connected therewith, it was specifically intended that it should not have any such jurisdiction. Or, putting it at the lowest, it was not intended that the Commission should inquire into that matter.

The position taken by the Commission, as regards this matter, has varied from time to time. In the notification issued under rule 5(2)(b) on 23rd June 1977, persons acquainted with the subject matter of the inquiry were invited by paragraph 1(2)(i) to give-

‘(i) The reasons and circumstances which, in the opinion of the deponent, led to the proclamation of a state of internal emergency on June 25, 1975.’

That certainly gives the impression that the Commission intends to inquire into ‘the reasons and circumstances’ leading to the Declaration of Emergency. However, in the Regulations which were published not long afterwards on 12th August 1977, there was a definition of ‘excesses and malpractices’ in Regulation 27 which reads as follows:

'For the purpose of these regulations and especially Regulations 14 the expression ‘excesses and malpractices' shall mean the matter specified in Paragraph 2(a)(i), (ii) and (iii), and paragraph 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) in the public notice issued by the Commission inviting the members of the public to submit their complaints before the Commission.’

Although this regulation refers to the various sub-paragraphs of paragraph 2 in the public notice, actually it should be paragraph 1(2) according to the numbering in the notification. Now, there is an important omission in Regulation 27. It refers to so many other sub-paragraph 1(2) in the notification, but not paragraph 1(2)(i). This means that the Commission was not treating the ‘reasons and circumstances’ leading to the Declaration of Emergency as an ‘excess or malpractice’. For, otherwise paragraph 1(2)(i) should also have been mentioned in Regulation 27. When practically all the other sub-paragraphs of paragraph 1(2) in the notification were carefully enumerated and included, it is not possible to regard the omission of paragraph 1(2)(i) as merely inadvertent.

In this Ruling of 21st November 1977, the Chairman said: ‘I am only concerned with the declaration of emergency, if it amounts to an excess and not otherwise’. But, in Regulation 27 he had already himself excluded it from the meaning of ‘excesses and malpractices’. The Chairman went on to explain: ‘It is not that it is the declaration of emergency which will be enquired into as an excess prima facie appearing on the materials placed before me’. I have already stated that I find that statement incomprehensible. I do not know how it is possible to inquire into the question whether an action is an ‘excess’ without also inquiring into the action itself.

At this stage, the Chairman does not allude to the provisions in the Constitution. But in his Ruling of 5th December 1977 he has these provisions very much in mind. He says:

‘So far as the contention which is sought to be raised that I am seeking either to challenge the decision of the President or the action of the Parliament in approving the declaration of Emergency, it must be mentioned that there is some serious misconception. I have no desire and I have no competence to challenge the action of he President not the approval given by the Parliament: but as directed by the terms of reference by which I am bound, I have got to make an inquiry on item No. (a) of the terms of reference, or 2(a)(i) of the terms of reference which read as follows:-

On the Chairman's own reasoning, he should have so interpreted paragraph 2(a)(i) of the terms of reference as not to place him in the position of having ‘to challenge the decision of the President or the action of the Parliament in approving of the declaration of Emergency’. He did otherwise.

In his Ruling of 10th January 1978, the Chairman reiterates that position, but with a significant addition. He says:

‘It was then said that I cannot inquire into the declaration of I cannot go into the question as to the declaration of the emergency by the President not the approval by the Parliament. But on the terms of reference, and especially Item 1 of the terms of reference, it is open to me and it is my duty to go into the question whether circumstances in which advice was tendered to the President pursuant to which a declaration of emergency was promulgated or the manner in which such advice was given amounted to an excess.’

So, the Chairman considers that it is permissible for him to inquire into the question ‘whether circumstances in which advice was tendered to the President’ or ‘the manner’ in which such advice was given amounted to an excess. This goes directly contrary to Article 74(2) of the Constitution which says that such advice ‘shall not be inquired into in any court’. Mr. Venugopal said that the prohibition applied only to a ‘court’ and did not extend to a ‘tribunal’. I do not agree. I have already cited authority for the proposition that even if the Articles I have mentioned were not in the Constitution, the legal position would still be the same. The fact that we have a Cabinet system of Government entails those rules as a matter of course. They are natural emanations from the organism of the Constitution. To me it seems startling that a ‘court’ should be prohibited from inquiring into the advice given by the Council of Ministers to the President, but not a ‘tribunal’. I can discover no reasons for such a distinction. The object is to ensure secrecy. That object can be defeated by disclosure in ‘court’ as well as before a ‘tribunal’.

I would base my conclusion on two alternative answers. First, on general principles, apart from the provision in the Constitution, the advice cannot be required to be disclosed whether before a court or a tribunal. The Cabinet system necessitates that rule. Secondly, and in the alternative, I would interpret the word ‘court’ in Article 77(3) in a wider sense to include a ‘tribunal’. The context so requires, and it is necessary to do so far upholding the Constitution ‘Literality’ and must be given second place when such grave Constitutional propositions are involved. There is ample authority for departing from the literal meaning of words if the circumstances so demand: see for example R.M. D. Chamarbaugwalla v. The Union of India, (1957) S.C.R. 930(41), and Burmah-Shell Oil Storage and Distributing Co., of India Ltd. v. Manmad Municipality and another, AIR 1958 Bombay 43 (42). And as Lord Reid pointed out in Maunsell v. Olins and another, (1975) 1 All E.R. 16(43), the rules of constructions ‘are not rules in the ordinary sense of having some binding force. They are our servants not our masters’.

The position taken on behalf of the Chairman in the proceedings before the Chief Metropolitan Magistrate seems to be a complete reversal. As I have already mentioned, an application was moved on behalf of Mrs. Gandhi on 9th June 1978 praying that the Chairman be summoned as a witness. In paragraph 2 of that application it was alleged that since the Chairman had publicly denounced the Emergency at public meetings and so forth he was disqualified ‘from functioning as the head of the Commission’. In the reply to that paragraph a number of alternative submissions were made. But in the last sentence it was said: ‘Moreover, there was an could be no issue before the Commission with regard to the Proclamation of Emergency itself’. Considering the orders that the Chairman had made in the course of the inquiry proceedings, that is an astonishing statement to be made on his behalf. The reply is signed by Mr. Khandelwala who was apparently appointed as Special Public Prosecutor. Presumably he was aware of the orders made by the Chairman from time to time. What is specifically significant in the reply is that it maintains that ‘there…..could be no issue before the Commission with regard to the proclamation of Emergency itself’. Of course, in my opinion that is the correct legal position, but this seems are unequivocal admission to that effect by or on behalf of the Commission.

In March 1978, the Commission submitted its Interim Report I. The title of Chapter V in this Report is ‘Circumstances leading to the declaration of Emergency on June 25, 1975’. The chapter covers pages 17 to 32 of the Report. Some of the conclusions reached are worth noticing. In paragraph 5.53 the Commission says:

‘On the basis of the evidence it is clear that some of the important functionaries in the Home Ministry, Cabinet Secretariat and the Prime Minister's Secretariat, who should have been consulted before such an important decision was taken, did not know anything about the proclamation of Emergency till very late and some of them learned about if only on he morning of June 26, 1975’.

This was certainly an inroad upon Article 74(2). And, there is nothing in the Constitution requiring the Council of Ministers to consult important functionaries'.

In paragraph 5.60 the Commission held, inter alia, that ‘on the economic front there was nothing alarming’ and ‘the law and order situation was under complete control all over the country’. On the basis of these and other circumstances listed by the Commission, it holds without exactly saying so, that the Declaration of Emergency was not justified. The paragraph begins with the words: ‘Some of the special features of the proclamation of Emergency, as gathered from the official records, are as follows:-‘That is an inverted, almost sarcastic, way of saying that there was no ground for the President's ‘satisfaction’. This directly infringes Article 352(5)(a) of the Constitution.

In paragraph 5.63 it is mentioned that ‘In response to the Commission's Inquiry, the Cabinet Secretariat has brought to the notice of the Commission the relevant portions of the Government of India (Transaction of Business) Rule 1961’. Then some of the rules are quoted and used for arriving at certain conclusions. This is a total negation of Article 77(4). No ‘authority’ had the power to require the production of those rules. The Cabinet Secretariat seems to have been wholly unaware of the provisions of the Constitution.

Then, in paragraph 5.68, the Commission holds that the decision to declare the Emergency was exclusively that of the Prime Minister. This is what the Commission says in that paragraph:

‘The circumstances leading to the declaration of Emergency pursuant to the advice of the Prime Minister leave little room for doubt that the decision to impose Emergency, when there was already in existence an Emergency proclaimed as early as 1971, was exclusively the decision of the Prime Minister. None of her Cabinet Ministers, except Shri Brahmananda Reddy was even aware of the proposal to advice the President pursuant to which a declaration of Emergency was to be made. Even Shri Brahmananda Reddy. Home Minister, was not consulted; but he was merely informed shortly before the advice was tendered and his assistance was taken only for obtaining a letter from him intimating the decision of Smt. Gandhi and for forwarding the draft Proclamation to the President, pursuant to which the declaration of Emergency was issued. This assistance of Shri Brahmananda Reddey appears to have been taken only as a matter of form and merely because his assistance was perhaps required to formally forward the draft Proclamation to the President.’

Thus, in effect, the Commission is finding out what advice was given by which Minister in the Cabinet. This is a direct breach of Article 74(2). And, Mr. Bhatia has quoted many books to show that the Prime Minister can, in certain eventualities, take a decision first and consult the Cabinet afterwards.

In paragraph 5.69 and 5.70 the Commission holds that the Declaration of Emergency was not ‘legally permissible’ as there was a previous Declaration of Emergency in force. The relevant part of paragraph 5.69 reads as follows:

‘The Constitution contemplates declaration of only one Emergency, whether the satisfaction of the President depends upon the existence of Emergency arising out of war or out of external aggression or internal disturbance. The Emergency declared has no different qualities or connotations, according as the ground on which the President is satisfied, depends upon the existence of war of external aggression or internal disturbances. It may be recalled that there was an Emergency already declared and was in operation since December 1971. That Emergency had never been withdrawn. The Defence of India Rules were in operation as promulgated under the Defence of India Act enacted as an aftermath of the Emergency. The provisions of Article 358, by which the fundamental rights under Article 19 were suspended, were also in operation. This Constitution in the opinion of the Commission does not contemplate the issue of an Emergency upon an Emergency already existing, nor prevents the courts from entertaining any challenge to the declaration of this additional Emergency. But the provisions of the Constitution were amended by the 39th Amendment of the Constitution Act, which prevented a challenge being raised. But even when there was already in existence and in operation an Emergency under which powers could, be exercised, another Emergency was declared and the original Rules, i.e., Defence of India Rules were modified as Defence and Internal Security of India Rules, 1975’.

The conclusion is in paragraph 5.70:

‘This was more in the nature of a shock treatment, than a legally permissible Emergency, which could be declared according to the law then in force.’

This paragraph violates two clauses of Article 352. Far from the Constitution not contemplating ‘the issue of an Emergency upon an Emergency already existing’, clause (4) of that Article expressly recognises ‘the power to issue different Proclamations on different grounds’ and ‘whether or not there is a Proclamation already issued by the President’. The Commission has completely ignored that clause. Secondly, the Commission says that the Constitution does not prevent ‘the courts from entertaining any challenge to the declaration of this additional Emergency’. How that question arose before the Commission, I do not know; unless, it was treating itself on par with a ‘court’. In any event the proposition is in the teeth of Article 352(5)(b). The Commission is aware of the amendment of Article 352, but slurs over it.

I have referred to the Report to resolve any possible doubts as to the meaning of the Chairman in his orders made earlier. What he had in mind and intended to do is now clear from the report. There is no doubt in my mind that the Commission was not required by its terms of reference to inquire into the ‘circumstances’ and the ‘manner’ in which ‘advice’ was ‘tendered’ to the President to declare an Emergency, and it was unconstitutional for it to do so. It follows that in regard to this ‘subject’, which was item 11 in the summons and notice sent to Mrs. Gandhi, the Commission was not acting ‘in discharge of the duties imposed or in exercise of the powers conferred upon’ it by law and was not exercising any ‘legal powers’. Nor could Mrs. Gandhi be ‘lawfully examined’ on this subject.

‘Severability’

Earlier in this judgment, under the head ‘The 'Subjects' of Inquiry’, I have tried to show that if a Commission seeks to inquire into ‘matters’ not within its terms of reference or into which an inquiry is prohibited by law, a refusal to take an oath or answer a question will not make an offence under sections 178 or 179 respectively of the Indian Penal Code. In those circumstances, the Commission will have no power in ‘administer’ the oath under section 3 of the Oaths Act, and the witness will be under no obligation under section 4 to take it, because he cannot be ‘lawfully examined, or give, or be required to give evidence’ on that subject.

I have held that the Commission had no jurisdiction or power to inquire into any of the matters for which Mrs. Gandhi and Mr. Mukherjee were summoned and required to furnish statements, as the Commission had neither received any complaints nor had those matters been brought to its notice by the Central Government. That finding results in a total loss of jurisdiction in the Commission and presents no further problem.

But my findings that the Commission had no jurisdiction to inquire into the ‘Case of the Four Officers’, and into the ‘Circumstances’ and ‘Manner’ in which ‘Advice’ was ‘Tendered’ to the President to declare an Emergency, mean that the Commission had no jurisdiction to inquire into items 3 and 11 in the summons and the notice sent to Mrs. Gandhi. Those findings do not touch the other items. Likewise, my finding that the oath of secrecy was binding would mean that the Commission had no jurisdiction to ask questions regarding matters coming within the oath. It does not touch other matters. Thus, these finding result in a partial, but not a total, loss of jurisdiction. The question is whether by a partial loss of jurisdiction, the Commission was disqualified from administering the oath. Of course,, if I am right in my conclusion that the Commission had no jurisdiction at all as it had not received any complaints and the Central Government had not brought any of the matters to the notice of the Commission, then this question does not arise. However, assuming I am wrong on that point, I will go on to consider the question.

Since no similar question ever seems to have arisen before, there is no authority on the point. For drawing analogies Mr. Bhatia cited R.M.D. Chamarbaugwalla v. The Union of India, (1957) S.C.R. 930 (supra), Union of India v. Tarachand Gupta & Bros., AIR 1971 S.C. 1558(44), and Hall & Co. Ltd. v. Shoreham-By-Sea Urban District Council and another, (1964) 1 W.L.R. 240(45), but I have not found them of any real assistance. So, I have to do the best I can on principle.

The principle of ‘severability’ is recognised and applied in many branches of the law. For example, in certain circumstances the terms of a contract may be severed, the invalid ones being discarded and the rest upheld provided they are separable. Similarity, in the case of statutes when any of their provisions is found to be unconstitutional.

There are many considerations which enter into the operation. But the application of the principle of severability pre-supposes that severance is possible. If severance is simply not possible, naturally the principle cannot be applied.

The powers to administer the oath is controlled by section 3 of the Oaths Act. The oath is required to be taken and is administered once and as a whole. There is no way to sever the oath in relation to matters over which a public servant has jurisdiction and those over which he has not. Nor can be administering of the oath be bifurcated into a portion which is done ‘in discharge of the duties imposed or in the exercise of the powers conferred upon’ a public servant ‘by law’, and another portion which is not so done. A public servant cannot be ‘legally competent’ to administer the oath in one part, and not legally competent in the other. I am, therefore, driven to the conclusion that he must be means that if there is a partial lack or loss of jurisdiction, it results, in this sphere, in loss of jurisdiction as a whole. For this purpose, jurisdiction is indivisible.

Relating that to section 178 of the Indian Penal Code, it follows, that a public servant who does not have jurisdiction over the entire subject matter concerning which he requires a person to take the oath, is not ‘legally competent’. A refusal to comply with his direction will not, therefore, result in an offence.

Of course, if the oath is not taken, the stage for putting questions cannot reach for the reasons I have already explained, and no offence can occur under section 179 of the Indian Penal Code.

Whether the Procedure followed by the Commission was in Accordance with the Commissions of Inquiry Act, and, if not, what is the Effect?

On behalf of Mrs. Gandhi and Mr. Mukherjee it has been contended that the procedure which the Commission decided to follow, and did in fact follow, was wholly contrary to that laid down by the Commissions of Inquiry Act. The violations, it is submitted, were so grave and fundamental that thereby the Commission lost all jurisdiction, assuming it had any, to summon Mrs. Gandhi and Mr. Mukherjee or to administer the oath to them or ask them any questions. To test these arguments, it is necessary to compare the procedure followed by the Commission with the relevant provisions of the Act.

The first section that needs to be looked at, is section 4. It is entitled ‘Powers of Commission’, and reads as follows:

‘The Commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witness or documents;

(f) any other matter which may be prescribed.’

As the title indicates, this section equips the Commission with certain ‘Powers’ which usually vest in a civil court. It will be observed that the section is not concerned with procedure in the sense of the sequence in which various steps occur in proceeding. It simply confers on the Commission the ‘Power’ to do certain things necessary to be done in the course of a proceeding. For knowing the sequence to be followed in a proceeding, section 4 affords no guidance; nor is it concerned with that problem. It should be noticed that apart from enabling the Commission to summon and enforce the attendance of witnesses, this section givers power to examine them ‘on oath’. The Commission is also given the power of ‘receiving evidence on affidavits’.

Next, there is section 5. It is entitled ‘Additional Powers of Commission’. The powers are contained in sub-sections (2) and (3), but are not available unless the appropriate Government issues a notification under sub-section (1) in respect of a particular Commission. By the notification containing its terms of reference the Shah Commission was given those powers. I am only concerned with sub-section (2) which reads as follows:

‘The Commission shall have power to require any version, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the commission, may be useful for, or relevant to, the subject-matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.’

The power given by this sub-section is to ‘require’ a person ‘to furnish information’. It will be remembered that this sub-section was cited in the summons and notices sent to Mrs. Gandhi and Mr. Mukherjee. But it gives no power to examine ‘orally’ or ‘on oath’. Dealing with similar words in taxing statute in Commissioners of Customs and Excise v. Hars and another, (1967) 1 All E.R. 177(46), Lord Ried said:

‘I do not think, however, that this entitles the commissioners to send a representative to confront the trader, put questions to him orally and demand oral answers on the spot; and I am certainly of opinion that it does not entitle them to send their representative is subject the trader to a prolonged interrogation in the nature of a cross-examination. This provision is in sharp contrast with provisions which expressly entitle officers to question persons with regard to particular matters, e.g., to question passengers entering the country with regard to their luggage. When it is intended that officers shall obtain information by asking oral questions that is made plain in the statute. The Solicitor-General was asked whether he was aware of any other case in which a government department claimed the right to send a representative to interrogate a person for hours on and under the sanction that he would be prosecuted, if he failed to answer any question, and that any incriminating answer which he might give under threat of prosecution for failing to answer could be used in evidence against him. He was unable to cite any parallel case.’

In the Commissions of Inquiry Act, also, there is a ‘sharp contrast’ between this provision and section 4(a) which specifically gives power to examine ‘on oath’, and the same reasoning will apply.

That disposes of a submission which Mr. Venugopal made off and on in the course of his address. He said that the Commission could ask for ‘information’ from Mrs. Gandhi and Mr. Mukherjee under section 5(2), and he sought to interpret the proceedings on the dates in question as if that was what the Commission had tried to do. To begin with, it is not factually correct that the Commission required Mrs. Gandhi and Mr. Mukherjee to ‘furnish’ any ‘information’. Even in the summonses and notices the word ‘information’ was not used. Nor did the Chairman utter it on 11th, 12th, or 19th January 1978. However, laving that aside and assuming that the Chairman was intending to use the power conferred by section 5(2) as Mr. Venugopal suggests, then the Chairman had no power to examine Mrs. Gandhi or Mr. Mukherjee ‘on oath’ and that is clearly, even according to Mr. Venugopal, what the Chairman sought to do. Therefore, it is quite plain that section 5(2) cannot support the direction of the Chairman to Mrs. Gandhi and Mr. Mukherjee to take the ‘oath’ and make ‘a statement’.

This line of reasoning is obviously an afterthought, and patently untenable for another reason. If supposing the Chairman was intending to exercise his power under section 5(2), then on the refusals by Mrs. Gnadhi and Mr. Mukherjee they ought to have been prosecuted under section 176 of the Indian Penal Code as section 5(2) itself indicates. They were actually prosecuted under section 178 of the Indian Penal Code which does not relates to section 5(2). That shows that no one had section 5(2) in mind, and, rightly, because it gave no power to examine a person ‘on oath’. The argument is a valiant invention by Mr. Venugopal but cannot possibly be sustained.

I pass on to section 5A. The first sub-section merely says that ‘The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the service’ of the investigating agencies thereafter indicated. Sub-section (2) confers certain powers that may be exercised in the course of the investigation. Sub-section (3) is not relevant. Then, sub-sections (4) and (5) read as follows:

‘(4) The officer or agency, whose services are utilised under sub-section (1), shall investigate into any matter pertaining to the inquiry and submit a report thereon (hereafter in this section referred to as the investigation report) to the Commission within such period as may be specified by the Commission in this behalf.

(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusions, if any, arrived at in the investigation report submitted to it under sub-section (4), and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.’

It is not clear how sub-section (5) is to be applied. How and when, in the course of an inquiry, is a Commission to ‘satisfy itself about the correctness of the facts stated and the conclusions, if any, arrived at in the investigation report’? In the Grover Commission Final Report 1979 it is said: ‘Sub-section (5) is, to say the least, not happily worded’. I would entirely agree. However, Mr. Justice Grover was confronted with different questions. He was asked to decide whether section 5A could be used for the purpose of inquiring into the ‘entire allegations’ which were the subject matter of the terms of reference or ‘only with respect to some aspect’. He was also required to rule upon the admissibility of the investigation report in evidence, and other allied questions. Broadly, Mr. Justice Grover agreed with the view taken in the Sarkaria Commission First Report where similar questions had been raised. With the consent of counsel, the course which Mr. Justice Grover followed was to take the investigation report on record after formal proof, but he deferred consideration of the correctness of the report till after all the evidence had been recorded and arguments heard: see page XXXIII.

But, as I said, the question argued before me is altogether different. Whatever else sub-section (5) may or may not mean, at least one thing is clear: the ‘satisfaction’ of the Commission is to be arrived at after the investigation report has been prepared, and not before. I would have thought that in the very nature of things that must be so. But, here, it has been the other way round. Earlier in this judgment I have quoted the statement of Mr. T.N. Pandey where he says: ‘After investigation was made, the result was put before Mr. Justice J.C. Shah for consideration…….. The case summary was prepared after the case was approved by Justice Shah. It was the procedure laid down by the Commission. By the Commission I mean Justice Shah’. This is corroborated by the Chairman himself in his Ruling of 21st November 1977. It will be recalled that he said that the cases ‘were sifted through the investigating agencies and thereafter when it appeared that there was some prima facie evidence of the commission of an excess, a statement of the case was prepared and publicly read out’. But if he found that there was ‘no case prima facie’ it was ‘ruled out’. So without his ‘satisfaction’, albeit ‘prima facie’, a case summary was not even prepared. As I said before, the case summary was more akin to an indictment, being the mode in which a ‘case’ was ‘presented before the Commission’. Significantly, the Chairman himself describes it was as ‘a statement of the case’.

Now, the object of an investigation report is not to ‘present’ a case before the Commission but to assist the Commission in the process of inquiry. If found to be correct, it may be relied upon in the Report. But it is not intended to be used as a substitute for a charge. Section 5A was inserted in the Act in 1971 pursuant to a recommendation made by the Law Commission in its Twenty-Fourth Report 1962. In paragraph 17 the Law Commission said:

‘The question as to the manner in which a Commission of Inquiry may be assisted in the matter of investigation may also be considered. In England, there is a Treasury Solicitor with a permanent staff who works under the directions of the Tribunals constituted under the English Act. The Treasury Solicitor performs the functions of investigation which in a criminal case are performed by the police. He sifts the facts and finds out what witnesses should be examined and collects other material which will be useful to the Tribunal. It has been suggested that a similar machinery should be set up in this country. We commend this suggestion to the Government. The setting up of such a machinery will relieve the Commissions of Inquiry of a great deal of preliminary and routine work over which it should not waste its time.’

At the time of framing its Regulations, the Commission correctly delineated the role of the investigating agency. Regulation 23 was as follows:

‘The Commission may utilise the service of officers attached to it for the purposes of investigation to conduct preliminary investigation into matters which, in the opinion of the Commission, deserve investigation by the Commission's own agency. Such preliminary investigation shall generally be in the nature of locating and identifying witnesses and collecting documentary and other information relevant to the proceedings of the Commission. Formal recording of evidence, either through affidavits or examination viva voce will be done by the Commission as considered appropriate by it.’

This Regulation does not envisage that the investigation report would be read out at the public hearing by way of ‘presenting’ a case. Nor, indeed, would it be suitable for such a purpose if prepared according to the Regulation.

Thus, the preparation and use of case summaries cannot be supported by section 5A. There is no other section on which they were sought to be supported. I, therefore, conclude that the preparation of the case summaries was not in accordance with nor warranted by the Commissions of Inquiry Act, or even the Regulations framed by the Commission itself.

The point is not so inconsequential as it may seen. If the Commission is already satisfied, even if it be ‘prima facie’, of the ‘correctness of the facts stated and the conclusions, if any, arrived at in the investigation report’ the chances of its changing its opinion are reduced. At any rate, justice must be seen to be done, which is not less important than that justice should be done. This procedural aberration was capable of vitiating the whole inquiry.

For my own part, I would not advert to section 6 because I think it is not relevant. But Mr. Venugopal laid a great deal of stress on it at the commencement of his argument, though after some discussion his zeal seemed to noticeably wane. In deference to the argument I will refer briefly to section 6. It reads as follows:

‘No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement:

‘Provided that the statement-

(a) is made in reply to a question which is required by the Commission to answer, or

(b) is relevant to the subject-matter of the inquiry.’

I do not think this section contributes anything worthwhile to the discussion. This section is not new or novel. Similar sections are found in so many statutes. Their forbear is the proviso to section 132 of the Indian Evidence Act. The purpose is to grant indemnity or protection to a witness so that he may speak the truth without fear or hesitation. It does not touch the question, as to who can be examined as a witness and at what stage. That is the question which arises here. The section assumes that there is a person who is ‘in the course of giving evidence’. Mr. Venugopal's argument that if a person on whom notice under section 8B is served is allowed to remain out of the witness-box, section 6 will become discriminatory misconceived. Section 6 applies equally to all those who stand in the witness-box, once they are there. It has nothing to do with the question whether they can, or should, be called to the witness stand.

The sections on which the argument really turns are the ones I will now be examining.' The first to be considered in section 8. It reads as follows:

‘The Commission shall, subject to any rules that may be made in this behalf, have power to regulate its own procedure including the fixing of places and times of its sittings and deciding whether to sit in public or in private.’

This section gives the Commission power to devise it own procedure. But there is due limitation. The procedure devised is ‘subject to any rules that may be made in this behalf’. That means that the procedure devised by the Commission must not go contrary to the rules. Or, to put it another way, if there is a conflict between the procedure adopted by the Commission and the rules, the rules prevail.

The power to frame rules is given by section 12. In exercise of that power the Central Government made rules which were published in a notification dated 7th May 1960. These rules are extremely instructive regarding the point in controversy, and, therefore, I set them out in full:

1. Short title and application.-(1) These rules may be called the Central Commissions of Inquiry (Procedure) Rules, 1960.

(2) They shall apply to Commissions of Inquiry appointed by the Central Government.

2. Notice to persons for giving evidence.-(1) The Commission shall, as soon as may be after its appointment:-

(a) issue a notice to every person who in its opinion should be given an opportunity of being heard in the inquiry to furnish to the Commission statement relating to such matters as may be specified in the notice;

(b) issue a notification to be published in such manner as it may deem fit, inviting all persons acquainted with the subject matter of the inquiry to Furnish to the Commission a statement relating to such matters as may be specified in the notification.

(2) Every statement furnished under sub-rule (1) shall be accompanied by an affidavit in support of the facts set out in the statement sworn by the person furnishing the statement.

(3) Every person furnishing a statement under sub-rule (1) shall also furnish to the Commission along with the statement a list of documents, if any, on which he proposes to rely and forward to the Commission wherever practicable the original or true copies of such of the documents as may be in his possession or power and shall state the name and address of the person from whom the remaining documents may be obtained.

3. Recording of evidence.-(1) The Commission shall examine all the statements furnished to it under Rule 2 and if, after such examination, the Commission considers it necessary to record evidence, it shall first record the evidence if any produced by the Central Government and may thereafter record in such order as it may deem it-,

(a) the evidence of any person who has furnished a statement under Rule 2 and whose evidence the Commission, having regard to the statement, considers relevant for the purpose of the inquiry;

(b) the evidence of any other person whose evidence in the opinion of the Commission, is relevant to the inquiry.

(2) If, after all the evidence is recorded under sub-rule (1); the Central Government applies to the Commission to recall any witness already examined or to examine any new witness, the Commission shall, if satisfied that it is necessary for the proper determination of any relevant fact so to do, recall such witness or examine such new witness.

4. 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 person; or

(b) is of the 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.

‘5. Right of cross-examination and representation by legal practitioner.-The Central Government, every person referred to in Rule 4 and with the permission of the Commission any other person whose evidence is recorded under Rule 3-

(a) may cross-examine a witness other than a witness produced by it or him;

(b) may address the Court; and

(c) may be represented before the Commission by a legal practitioner or with the consent of the Commission, by any other person.

6. Procedure in matters not provided in the Rules.-The Commission shall have the power to regulate its own procedure in respect of any matter for which no provision is made in these Rules.’

These rules seem to have been carefully drafted and make a perfectly comprehensible scheme. They lead to some observations of critical importance. First, there is a distinct contrast between persons falling under rule 2(1)(a) and (b) on the one hand, and those who come under rule 4 on the other. Persons coming under rule 4 are not treated as if they were also covered by rule 2(1)(a) or (b). That is to say, persons under rule 4 are in a separate class by themselves.

Second, the rights of persons falling within rule 2(1) are entirely different to those of persons falling under rule 4. Let us first consider a person under rule 2(1). He may be allowed, at the discretion of the Commission, to lead evidence provided that he ‘has furnished a statement under Rule 2’. That appears from rule 3(a). It follows that if a person falling within rule 2(1) has not ‘furnished a statement’, he cannot be permitted to lead evidence under r

Please Login To View The Full Judgment!

ule 3(a), though the Commission may possibly, in its discretion, allow him to do so under rule 3(b) treating him as ‘any other person’. That, in brief, is the position under rule 3 of a person falling within rule 2(1). Now passing on to rule 5, it will be seen that a person falling within rule 2(1) is not mentioned as such. The reference is to ‘any other person whose evidence is recorded under rule 3’. As regards a person within rule 2(1), that would normally mean one who had furnished a statement, a person falling within rule 2(1) would not normally qualify under rule 5 for having an opportunity to cross-examine. Even then, no ‘right’ of cross-examination is given by rule 5. It depends upon the obtaining of ‘the permission of the Commission’. The sole exception to the rule that only those persons under rule 2(1) who have ‘furnished a statement’ can be permitted cross-examine under rule 5, is where such a person has been allowed by the Commission to lead evidence under rule 3(b) on the footing that he is ‘any other person’. The position of a person falling under rule 4 is entirely different. There is no rule requiring him to ‘furnish a statement’. Furthermore, under rule 5 such a person is given an absolute right to cross-examine. He does not have to seek the ‘permission’ of the Commission. He is placed on par, in this respect, within the Central Government. It makes sense that he should not be required to furnish a statement and should have an absolute right of cross-examination. After all, he is a person whose conduct is being inquired into by the Commission or is one who is likely to be prejudicially affected by the inquiry. He is a person who has to defend himself. That is why rule 4 gives him the right ‘to produce evidence in his defence’. No similar right is mentioned in connect with a person falling under rule 2(1). The require a person falling under rule 4 to ‘furnish a statement’ would be requiring him to disclose his defence in advance, which goes contrary to the fundamental tenets of our jurisprudence. Thirdly, it is to be observed that rule 3 enjoins that in all cases the Central Government must lead its evidence first. There is no exception whatsoever made to that rule. Whatever may be the order of leading evidence amongst the other persons mentioned in clauses (a) and (b) of rule 3, the Commission is not empowered to make any departure from the rule that ‘it shall first record the evidence if any produced by the Central Government’. Fourthly, whether notice should issue under clause (a) of rule 2 depends on an ‘opinion’ formed by the Commission. Not so with regard to a person falling within clause (a) of rule 4. The moment it is decided to hold an inquiry into his ‘conduct’ he has to be given a ‘reasonable opportunity of being heard’. This, again, is understandable. The person under rule 4(a) is at risk. There is nothing to indicate that a person under rule 2(a) is in any kind of jeopardy. That clause of rule 2 will cover even the Memorialist who may have been the originator of the inquiry and is in the position of a complainant. And, clause (b) will cover nearly every one who is a potential witness. That shows how great the distinction is between rule 2 and rule 4. In 1962, the Law Commission made its Twenty-Fourth Report in which it examined the Commissioner of Inquiry Act. After weighing the pros and cons, the Law Commission decided, on a balance, to retain the Act: see para 8. They were aware that the findings of a Commission ‘on the conduct of persons involved in the case may cause irretrievable damage to those persons and may even ruin them for life’: see para 7. They even gave some distressing examples. Consequently, they were anxious to provide safeguards. Their approach was that ‘there should be a just balance between the interests of the general public and the rights of individuals, between the claims of the State and civil liberties’: see para 9. With these thoughts, they turned, in paragraph 14, to ‘the procedure to be followed’. Referring to rules 4 and 5 of the 1960 Rules they said: ‘We think that since these rules embody the fundamental principles of natural justice and safeguard the rights of individuals, they should be incorporated in the Act itself.’ It is important to notice that the Law Commission considered that rules 4 and 5 of the 1960 Rules embodied ‘the fundamental principles of natural justice and safeguard the rights of individuals’. Their obvious purpose in making the recommendation that these rules ‘should be incorporated in the Act itself’ was to prevent the abrogation of these safeguards at the whim of the Central Government by a change in the Rules. Parliament took a long time in implementing the recommendation of the Law Commission. Ultimately, by an amending Act of 1971, section 8B and 8C were inserted in the Commissions of Inquiry Act. I quoted those sections at an early stage in this judgment, but I am setting them out again for easy comparison with rules 4 and 5 of the 1960 Rules. The sections, with their side-notes, read as follows: ‘Persons likely to be prejudicially affected to be heard. 8B. If, at any stage of the inquiry, the Commission:- (a) considers it necessary to inquire into the conduct of any person, 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. Right of cross-examination and representation by legal practitioner 8C. The appropriate Government, every person referred to in section 8B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission:- (a) may cross-examine a witness other than a witness produced by it or him; (b) may address the Commission; and (c) may be represented before the Commission by a legal practitioner or, with the permission of the Commission, by any other person.’ It will be seen that these sections are verbatim the same as rules 4 and 5 of the 1960 Rules. Even the side-notes are the same. There are only two insignificant changes. A proviso has been added in section 8B, and in section 8C the reference to rule 3 had naturally to be omitted. Therefore, the propositions which were deduced with regard to rules 4 and 5 must equally hold with regard to sections 8B and 8C. One proposition was that a person falling under rule 4 cannot be required to ‘furnish a statement’. The same will be true about a person falling under section 8B. Another proposition was that a person falling under rule 4 had an absolute right under rule 5 to cross-examine witnesses. That position is maintained in regard to a person coming within section 8B, by section 8C. And thirdly, the Central Government still had to load its evidence first because rule 3 remained intact. All that was really done was to bodily lift rules 4 and 5 and put them into the Act. They were thus elevated to a higher status and put beyond the reach of the Central Government. Now, here a very important conclusion emerges. Just as section 8 was subject to rules 4 and 5, so, also, it had to be subject to sections 8B and 8C. Otherwise, the whole purpose of the Law Commission and Parliament would stand defeated. It would mean that a Commission could be devising a procedure of its own override sections 8B and 8C which the Law Commission regarded of such crucial importance as to deserve a place in the Act itself. Furthermore, it would be odd that in the shape of rules these provisions prevailed over section 8 of the Act, but as sections in the Act itself they become less effective. It is true that the words ‘subject to any rules’ in section 8 were not altered to ‘subject to the other provisions of this Act’, but the Act has to be read as a whole and the intention is too plain having regard to the legislative history. Besides whenever there is a special provision dealing with a particular matter it prevails, in regard to that matter, over the general provision. That is a well settled rule of construction: see The Commissioner of Wealth Tax, Andhra Pradesh, Hyderabad v. Trustees of H.E.H. Nizam's Family, AIR 1977 S.C. 21-3(4). Since sections 8B and 8C specifically deal with the case of a person whose conduct is being inquired into or whose reputation is likely to be prejudicially affected by the inquiry, the procedure in respect of such a person is controlled by those sections, and section 8 is relegated to the background. It can operate only in areas not governed by sections 8B and 8C. Thus, in the event of conflict section 8 has to give way. The resulting position is clear and consistent and conforms with the ordinary notions of justice. As a result of the amendments made in the Act in 1971, it became necessary to re-draft the rules. The new rules were made by the Central Government in 1972. In these new rules, all the old rules, except, of course, rules 4 and 5, were made the sub-rules of one rule, with certain modifications. That rule, in the 1972 Rules, is rule 5, of which I will again quote the first five sub-rules for comparison: ‘Procedure of Inquiry-(1) A Commission may sit in public or in private as it thinks fit: Provided that a Commission shall sit in private on a request being made by the Central Government in that behalf. (2)A Commission shall, as soon as may be after its appointment- (a) issue a notice to every person, who in its opinion should be given an opportunity of being heard in the inquiry, to furnish to the Commission a statement relating to such matters as may be specified in the notice; (b) issue a notification, to be published in such manner as it may deem fit, inviting all persons acquainted with the subject matter of the inquiry to furnish to the Commission a statement relating to such matters as may be specified in the notification. (3) Every statement furnished under clause (a) of sub-rule (2) shall be accompanied by an affidavit in support of the fact set out in the statement sworn by the person furnishing the statement. (4) Every person furnishing a statement under clause (a) of sub-rule (2) shall also furnish to the Commission along with the statement a list of the documents, if any, on which he proposes to rely and forward to the Commission, whenever practicable, the originals or true copies of such of the documents as may be in his possession or control and shall state the name and address of the person from whom the remaining documents may be obtained. (5)(a) A Commission shall examine all statements furnished to it under clause (b) of sub-rule (2) and if, after such examination, the Commission considers it necessary to record evidence, it shall first record the evidence, if any, produced by the Central Government and may thereafter record evidence in such order as it may deem fit:- (i) the evidence of any person who has furnished a statement under clause (a) of sub-rule (2) and those evidence the Commission having regard to the statement, considers relevant for the purpose of the inquiry; and (ii) the evidence of any other person whose evidence, in the opinion of the Commission, is relevant to the inquiry.’ The rest of sub-rule (5) is not relevant. Although the draftsman has made some small modifications in the old rules whilst incorporating them in rule 5, it can be seen that substantially he has retained them as they were. The modifications made in sub-rules (3) and (4) of this rule, by which their application is confined to a statement furnished ‘under clause (a) of sub-rule (2)’, and the reference in sub-rule (5) to ‘statements furnished: …….under clause (b) of sub-rule (2); produce some conumdrums, but they do not bear on the questions with which I am concerned. The important and relevant points are: first, the sub-rule (2) and both its clauses are identical with the old rule 2(1) and its clauses. There is no change at all. And, second, that sub-rule (5) of the new rule, like the old rule 3, directs the Commission that ‘it shall first record the evidence, if any, produced by the Central Government’. No exception whatsoever is made to that rule. Nothing in the new rule 5 suggests that it was intended that its sub-rule (2)(a) should apply to person falling within section 8B. A change of so radical a nature would at least merit a separate rule of its own. Requiring a person accused of misconduct to furnish a statement disclosing his defence even before he has heard the case against him, is so opposed to the basic norms of our legal system that every court would be loth to draw such an inference. But, as I have tried to show, there is not the minutest foothold for such an inference. On the contrary, everything is against it. One other point, which I have mentioned before, needs to be restated. Granting every thing for the sake of argument, still rule 5(2)(a) does not even itself compel the recipient of the notice to furnish a statement. This was conceded by Mr. Venugopal. In State of Punjab and another v. V.P. Duggal and others, AIR 1977 S.C. 196(48), the Supreme Court ruled that a party to proceeding cannot be directed to file an affidavit answering allegations made against him, and it is for that party to decide whether the should file an affidavit or not. So, even supposing rule 5(2)(a) applies to a person falling under section 8B, he is not bound to furnish a statement. The consequence, in law, of his not filing a statement would be that the Commission could draw an adverse inference against him. The theory is that if a person has been given an opportunity to speak but remains silent he has something to hide. That is normal human conduct, and an illustration appended to section 114 of the Evidence Act indicates that in those circumstances an adverse presumption may be drawn. I will be remembered that in a letter dated 31st December 1977 to Mr. Mukherjee the Secretary of the Commission said: ‘If your statement is not received in time, It have been desired by the Commission to inform you that the Commission will presume that you have nothing to say on the subject’. That was a perfectly correct statement of the legal position, assuming of course that rule 5(2)(a) applies to a person falling under section 8B. It is implicit in that principle of law that the person concerned cannot be compelled to speak. For, if he can be compelled to make a statement both the need and the justification for an adverse presumption are gone. This is what Mr. Bhatia argued before the Commission on 12th January 1978 and the Chairman said: ‘That does not mean that I am not entitled to examine him’. When Mr. Bhatia then said: ‘………if after that your Lordship has got the power to put him into the witness box and examine him then My Lord your Lordship's powers to draw an adverse inference comes to an end….’ The Chairman's response was: ‘Well I will consider it.’ That argument by Mr. Bhatia was never met. I can now sum up what I understand to be the law. A person whose conduct is being inquired into by the Commission or who is likely to be prejudicially affected by the inquiry must be given ‘at reasonable opportunity of being heard’. That itself implies the right to cross-examine witnesses who depose against him: see Town Area Committee, Jalalabad v. Jagdish Prasad and others, AIR 1978 S.C. 1407(49), and State of Kerala v. K.T. Shaduli, Grocery Dealer etc. AIR 1977 SC 1627(50). But, here that right is specifically granted by the statute itself in section 8C, and hence it is not necessary to resort to any inference. Further, such a person is given the right by section 8B ‘to produce evidence in his defence’. From the combination of these two rights a sequence immediately emerges. Cross-examination of the witnesses who depose against him by a person falling under section 8B after he has produced his evidence in defence has no meaning. The witnesses would known the line and the object of the cross-examination before they came to depose, and, human nature being what it is, they would reorder their testimony to thwart the defence. That is why sub-rule (5) of rule 5 is so strict that the evidence of the Central Government must be produced first. In contrast, it leaves the order in which the witnesses produced by other participants are to be examined to the discretion of the Commission. The old rule 3 did the same. Therefore, in the nature of things, the witnesses against a person falling under section 8B must be produced witnesses against a person falling under section 8B must be produced first and he must be allowed to cross-examine them before he is called upon to produce evidence in defence. This also concords with the rule of evidence that those who allege misconduct must prove it: see Delhi Cloth and General Mills Co. v. Ludh Budh Singh, AIR 1972 S.C. 1031(51). That is merely a corollary from section 103 of the Evidence Act which requires that evidence must first be led in the affirmative. Logic tells us that the negative is generally incapable of proof. My further conclusion is that rule 5(2)(a) does not at all apply to a person falling under section 8B. Alternatively, assuming I am wrong on that proposition, he is not ‘bound’ to furnish a statement under that rule. He may do so or not as he pleases. The only consequence is that he takes the risk of having an adverse inference drawn against him. But he cannot be compelled to submit to examination by the Commission. Furthermore, he cannot be deprived of the right of cross-examination because of not furnishing a statement. When a similar question arose under the Industrial Disputes Act 1947, the Supreme Court said it would be ‘against the principles of natural justice’ to deprive a person of his right to cross-examine on the ground that he had not filed a written statement: see M/s. Rohtas Industries Ltd. v. Workmen represented by Rohtas Industries Mazdoor Sangh and another, AIR 1977 S.C. 1867(52). All the Commission appointed in the past have followed the procedure I have outlined. Invariably, the Central Government and the Memorialists have been required to produce their evidence first, whether orally or by affidavit. The respondents, that is, the persons falling under section 8B, have been called upon to produce their evidence only thereafter. That was the procedure by the Das Commission; and, also, by the Khanna Commission see page 41 of the Khanna Commission Report. The Takru Commission did the same: see pages 443 and 444 of its Report. Likewise, the Sarkaria Commission: see pages 35 and 36 of its First Report. In the Parnell Commission, appointed in 1888, the very first in England, that was the procedure which was followed: see Trial by Tribunal by G.W. Keeton (1960 Edn.) pages 70 and 92. Never before has any Commission changed or sought to change, the sequence in which evidence was called. Nor have any of them attempted to compel a person falling under section 8B to furnish a statement or come into the witness-box. They have issued a notice to such a person and left it to him to choose his course of conduct. If he has kept away from the inquiry an adverse inference has been drawn. But, that is all. The Regulations made by the Shah Commission in particular Regulations 14, 15 and 16, given the impression that it intended to follow the same procedure. Mr. Venugopal cited an order made by the Reddy Commission which is at page 211 of its Report on the Nagarwala case. It appears that V.P. Malhotra, a person to whom notice had been given under section 8B, did not attend the proceedings of the Commission when the witnesses were examined. Afterwards, he applied for the witnesses to be recalled for cross-examination and for permission to make a statement himself thereafter. In a brief order the Commission rejected the prayer on the ground that the applicant was in default as he did not attend the sittings of the Commission when the witnesses were examined. Nevertheless, the Commission allowed the witnesses to be recalled, but did not defer the recording of V.P. Malhotra's own statement. Mr. Venugopal says that the sequence I am propounding was not adhered to by the Commission. I think that order made by the Commission is hardly one from which any conclusion can be drawn. It comprises one paragraph, and is really only concerned with the question of granting an adjournment. Moreover, the real view of the Commission comes out clearly in a passage on page 5 of its Report regarding the inquiry against Shri Bansi Lal. When Shri Surinder Singh who had been served with a notice under section 8B refused to take part in the proceedings, the Commission merely expressed its regret and said it would draw ‘whatever inferences have to be drawn’. That fully tallies with my view and that of the other Commissions I have mentioned. In the penultimate paragraph of his order of 10th January 1978, the Chairman relied on order 10 of the Civil Procedure Code by way of analogy to support his opinion. He said: ‘Having carefully considered the arguments, I am of the opinion that the procedure followed by me is the proper and the appropriate procedure to be followed. Further, that Mrs. Gandhi was bound under Rule 5(2)(a), to file a statement as she was directed to, and to file a statement on affidavit and to produce original documents on which she proposes to rely. Not having done so, it is my duty to examine her to determine what her version in regard to these 11 incidents, which are enumerated in the notice under section 8B is. For that purpose it would be open to rely upon a procedure analogous to Order of the Code of Civil Procedure.’ I have already come to the conclusion that rule 5(2) cannot be resorted to in respect of a person falling under section 8B. consequently, the question of such a person being ‘bound’ to file a statement under that rule does not arise. Even supposing the rule does apply, it does not compel the receipient of the notice to furnish a statement. That is a proposition which, as I have said many times before, even Mr. Venugopal did not contest. Therefore, the premises on which the opinion of the Chairman is based is unsustainable. And, by seeking to use Order 10 ‘to determine’ the ‘version’ of Mrs. Gandhi, the entire procedure laid down in sections 8B and 8C of the Act, and in rule 5(5)(a), was being overturned. Towards the close of the proceedings on that day, after Mr. Anthony had prayed for an adjournment and it had been granted, the Chairman again expounded his view as follows: 'Well, I will indicate this that this is, as I said, no civil trial, no criminal trial. If it were a civil suit. I would be entitled to pass a decree against a person against whom a claim is made and choose to file no defence. But not being a criminal case, for not filing a statement called for, does not involve any penalty. But I do propose to use the provisions analogous to order X of the Civil Procedure Code in which a Court, in order to determine what the version of a party is, to ascertain that party's pleading or version and for that I am obliged to examine her to ascertain what the version is, having regard to the attitude adopted in this case.' For the reasons I have just stated, these observations are equally unsustainable. In any event, there was no ‘analogy’ between Order 10 and the situation with which the Chairman was faced. At every point the analogy breaks down. Rule 1 of that Order reads as follows: ‘At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits of denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.’ This rule can be used only for examining a ‘party’. The Chairman himself took the position that there were no parties before him, and that Mrs. Gandhi and Mr. Mukherjee had been summoned as ‘witnesses’. Patently, the rule is not available for examining a ‘witness’. Again, the rule permits the examination of one party regarding ‘allegations of fact as are made in the plaint or written statement (if any) of the opposite party’. Who was the party ‘opposite’ to Mrs. Gandhi and Mr. Mukherjee before the Chairman? If it was the Central Government, they had filed no written statement containing any allegations respecting which Mrs. Gandhi and Mr. Mukherjee could be examined. The object of Order 10 rule 1 is to get ‘admissions and denials’ from a party who has been evasive in his pleadings, and thus to narrow the issues: see Bhimarao Gopal v. Venkatarao Narsingrao & c. 5 B.L.R. 687(53). It pre-suppose that the party sought to be examined has filed a written statement, which, because of its defective nature, necessitates oral examination. Hence, it is obvious that if no written statement has been filed the question of any examination under this rule does not arise. It has been so held in Laicrem v. Agar Das, AIR 1967 H.P. 26(54). It thus transpires that the reason given by the Chairman for seeking to examine Ms. Gandhi and Mr. Mukherjee was the converse of that which underlies rule 1. It is well settled that the object of the examination under Order 10 is not to take evidence but to determine what are the matters in dispute between the parties: Although rule 2 of Order 10 is much wider than rule 1, yet, in Manmohan Das and others v. Mt. Ramdei and another, AIR 1931 P.C. 175, the Privy Council said: ‘Before considering the case on its merits their Lordships desire to draw attention to the procedure which has been adopted in the taking of the evidence. At the trial before the Subordinate Judge the evidence first recorded is that of the defendant, Behari Lal, who is described as a 'Court-witness' and appears to have been called into the witness-box by the Judge himself. The record before their Lordship disclose no justification for this unusual proceeding. No doubt under O. 10, R. 2 any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in O. 18. Here the burden on the plaintiffs was to prove their case in ordinary course, yet the proceedings at the trial opened by the Court calling on one of the defendants to give evidence not on any specific points, but on the whole case, and the witness is then cross-examined at length, not through the Court, but by the other parties themselves. Doubtless Behari Lal, who was deeply implicated in the remarkable transactions which the Court had to investigate, knew most about the whole affair, and the Judge may have thought it useful to hear at the outset his account of the manner, but in the absence of some more cogent reason their Lordship cannot approve of such a deviation from normal and proper procedure’. These observations are most opposite to the course of the Chairman adopted or intended to adopt. No doubt in the course of Mr. Anthony's argument the Chairman did say ‘there will not be any cross examination at this stage’, but in his order of 10th January 1978 he seems to have rejected the submission that a person falling under section 8B was ‘immune’ from cross-examination. And, in the course of the proceedings when Mr. Lekhi gave a graphic description of the devastating manner in which be proposed to cross-examine Mrs. Gandhi, the Chairman did not tell him that there would be no ‘cross-examination at this stage’. In paragraph 3.23 of its Interim Report I the Commission has said that if ‘rejected the contention raised by counsel for Smt. Gandhi that a person to whom a summons is issued under section 8B cannot be cross-examined’ and has stated its reason therefor. In the Municipal Corporation of Greater Bombay v. Lala Pancham and others, AIR 1965 S.C. 1008(57), the High Court directed a party to examine certain witnesses. The Supreme Court criticised the order as ‘a very unsound one’ and made the following remarks: ‘In making this direction the High Court may have been actuated by a laudable motive but we think it ought to have borne in mind the limits which the law places upon the powers of the Court in dealing with a case before it. Just as it is not open to a court to compel a party to make a particular kind of pleading or to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. No doubt, what the High Court has said is not in terms a peremptory order but the parties could possible not take the risk of treating it otherwise. While, therefore, it is the duty of a court of law not only to do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise.’ I think, I have said enough to show that Order 10 furnished no analogy whatsoever for the procedure the Chairman decided to follow. Mr. Venugopal was unable to support the analogy, but rather tended to argue that if power had been claimed from a ‘wrong source’ that would not affect the exercise of the power if it otherwise existed. Rightly, I think, he did not spend time on Order 10. Mr. Bhatia very forcefully argued that ‘reputation’ was a part of ‘personal liberty’ within the meaning of Article 21 of the Constitution. Therefore, no one could be deprived of his reputation ‘except according to procedure established by law’. According to Mr. Bhatia, the Supreme Court in its latest judgments has interpreted that to mean a ‘reasonable’ procedure. He contended that the way in which the Chairman had sought to interpret and apply sections 8B and 8C, as also rule 5(2)(a), was so unreasonable as to violate Article 21. In addition, Mr. Bhatia argued, that by seeking to compel Mrs. Gandhi and Mr. Mukherjee to answer questions at the stage at which he did, after having served them with notices under section 8B of the Act, the Chairman was violating their ‘Right to Silence’ which is a Part of the right ‘to freedom of speech and expression’ guaranteed by Article 19(a) of the Constitution. In support of these propositions Mr. Bhatia cited a large number of cases, most of them American. I do not propose to go into these questions as I have come to the conclusion that the procedure devised by the Commission was contrary to the Commission of Inquiry Act. Mr. Venugopal relied a great deal on two cases, neither or which seems to me to be at all applicable. In the State of Jammu and Kashmir and others v. Bakshi Gulam Mohammad and another, AIR 1967 S.C. 122(58), it was held that under section 4(c) of the Commissions of Inquiry Act there was no right to cross-examine a person who had sworn an affidavit, though the Commission could in its discretion allow it. One of the reasons for reaching this conclusion was that in the case of witnesses examined viva voce the right to cross-examine had been expressly given by the Act whilst it was silent as regards affidavits. Here, admittedly, the right of cross-examination is being claimed by Mrs. Gandhi and Mr. Mukherjee in respect of witnesses examined viva voce. That right is so clearly and categorically given by section 8C to a person ‘referred to in section 8B’ that it cannot possibly be denied. The Supreme Court expressly recognised that right. I see nothing in that case which runs counter to my view. It is also worth noticing that in this case, too, the Government was required to file its affidavits before the person whose conduct was the subject of inquiry. The other case is Swami Dhirendra Brahmachari v. The Union of India & others, C.W. 635 of 1978 decided by a Division Bench of this court on 15th January 1979(59). There, also, the petitioner was prosecuted by the very same Commission for offences under sections 178 and 179 of the Indian Penal Code. His contention was that by seeking to question him the Commission was violating Article 20(3) of the Constitution. That was really the only question argued before the Division Bench, as the very first sentence of the judgment indicates. The court rejected the argument on the grounds that the petitioner was not a ‘person accused of an offence’ and the proceedings before the Commission were not criminal proceedings. One has only to glance through that judgment to see that none of the points argued before me was raised before the Division Bench. Mr. Venugopal, relied on a sentence here and there in the judgment, but the do not represent any decision in the case and have to be read in the context of the submissions made. The ratio of that case is that Article 20(3) does not apply in relation to proceedings before Commission under the Commissions of Inquiry Act. Mr. Bhatia recognised that, and, in consequence, did not canvass any point based on Article 20(3) in his argument before me, although he had taken some such points in his synopsis. He merely reserved his right to canvass those points in the event that these cases went to a higher court. Mr. Venugopal also relied on Re Perganon Press Ltd., (1970) 3 All E.R. 535 and Maxwell v. Department of Trade and Industry and others, (1974) 2 All E.R. 122. Those cases deal with the import of a duty to act ‘fairly’ and are of no relevance when, as here, the right to cross-examine is specifically given by the statute. I do not think that on the questions which I have had to consider regarding the interpretation of the Commissions of Inquiry Act any assistance can be derived from the English Law. The equivalent statute in England in the Tribunals of Inquiry (Evidence) Act 1921. It comprises three sections. The first section gives power to summon witnesses, compel production of documents and issue commissions for examining witness abroad. The second section requires the proceedings generally to be in public, and authorises the Tribunal to allow representation by counsel to persons interested. The third section states the title of the Act. And, that is all. There is nothing equivalent in sections 8B and 8C. In 1966 a Royal Commission was appointed to ‘review the working’ of the 1921 Act. It was presided over by Sir Cyril Salmon (now Lord Salmon). It think it is apparent from the Report of the Royal Commission that the reason for its appointment was the grave public misgivings about the interference with individual liberty by the Tribunal that had functioned under the Act. In paragraph 20 the Commission said: ‘It was evident from these inquires, which all had highly charged political backgrounds, that although none of the findings had given rise to dissatisfaction, yet certain matters of procedure were nevertheless causing grave concern.’ And again in paragraph 27: ‘The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.’ On a balance, the Royal Commission decided to recommend that the Act be retained although the ‘inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom’. In paragraph 30 it explained what was meant by inquisitorial procedure as follows: ‘There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. It is inherent in the inquisitorial procedure that there is no lis. The Tribunal directs the inquiry and the witnesses are necessarily the Tribunal's witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to be tried, no charges, indictments, or depositions. The inquiry may take a fresh turn at any moment. It is therefore difficult for persons involved to know in advance of the hearing what allegations may be made against them.’ This is the paragraph on which the Chairman relied in his order of 10th January 1978, as did Mr. Venugopal in his argument. Thereafter, in paragraph 32 the Royal Commission made six recommendations as to procedure which it called the ‘six cardinal principles’. This is what it said: ‘The difficulty and injustice with which persons involved in an inquiry may be faced can however be largely removed if the following cardinal principles which we discuss in Chapter IV are strictly observed:- 1. Before any person becomes involved in any inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate. 2. Before any person who is involved in an inquiry is called as a witness he should be informed of any allegations which are made against him and the substance of the evidence in support of them. 3.(a) He should be given an adequate opportunity of preparing his case and of being assisted by legal advisers. (b) His legal expenses should normally be met out of public funds. 4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry. 5. Any material witnesses he wishes called at the inquiry should, if reasonably practicable, be heard. 6. He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him. So, it can be seen how anxious the Royal Commission was to provide safeguards for persons involved in the inquiry. It is of the almost significance that the safeguards are those normally found in the adversary procedure. In the inquisitorial procedure, cross-examination ‘does not exist’: see Comparative Law by Budolf Schlesinger (1960 Edn.) page 224. Thus, what the ‘Royal Commission was in fact proposing was an admixture of adversary procedure with inquisitorial procedure. It is, also, interesting that in paragraph 49 the Report advises Tribunals to proceed with ‘less haste’ in order to do justice. As it happens, the recommendations of the Royal Commission have not, up to date, been accepted or implemented by the British Parliament. The Act of 1921 remains as it was. But, as the Law Commission pointed out, the Indian Act was far in advance of English law. The recommendations made by the Royal Commission are in the general direction of having something like sections 8B and 8C, though the Commission itself was against giving the procedure a statutory form. Now the main thrust of Mr. Venugopal's argument has been that since the proceedings are inquisitorial, the truth must be discovered at any cost and no provision in the Commissions of Inquiry Act should be so interpreted as to obstruct the attainment of that object. In my opinion that proposition cannot be accepted without qualification. No doubt the proceedings are ‘inquisitorial’ and ‘fact-finding’. But, the Act itself contains sections 8B and 8C and they have to be given proper effect. It is not given to man to know the absolute truth. Men have died under torture and not spoken. In any civilised society the discovery of truth is restrained by the law according to the procedure which it prescribes and allows. The Spanish Inquisition may have been very successful in finding the ‘truth’, but every person with a touch of humanity thinks of it as an abomination. There are other things to be considered, also, such as the reputation and liberty of the individual. The Royal Commission in England and the Law Commission here were rightly very concerned about that. In the end, Mr. Venugopal's argument came to this that the power to summon under section 4(a) of the Commissions of Inquiry Act was uncontrolled by sections 8B and 8C. In my opinion that argument cannot bear a moment's scrutiny. As I said before, section 4 gives certain ‘powers’ to the Commission. It does not deal with procedure. The ‘powers’ have to be exercised so as to accord with the procedure prescribed and not so as to accord with the procedure. The ‘powers’ have to be exercised so as to accord with the procedure prescribed and not so as to destroy it. The power to summon witnesses is given by the Civil and Criminal Procedure Codes. No one has ever suggested that it can be used disregardful of the rules of procedure which they contain. What the Commissions of Inquiry Act has done by sections 8B and 8C is to superimpose the adversary procedure on the inquisitorial, when the conduct of a person is being inquired into or his reputation is likely to be prejudicially affected by the inquiry. In the book on the law relating to Commissions of Inquiry by S.C. Gupta (1977 Edn.) there is a thought provoking Introduction by Mr. Justice Mathew. After reviewing various aspects of the matter he concludes: ‘These circumstances would show that there is only minimal difference between the nature of the proceedings before a Commission when the Commission has to enquire into the conduct or matters affecting reputation of a person to which Section 8B is attracted and that of a criminal proceeding in respect of the same subject-matter.’ I agree with him. These observations may be only ‘in an Introduction to a text book’ but their author was once a judge of the Supreme Court. I think, the Chairman has misunderstood what Mr. Justice Mathew has said about the burden of proof. It is settled law that if a finding has to be given in a civil case on a matter which also amounts to a criminal offence, the standard or proof to be applied is that of the criminal side. For example, in a divorce proceeding adultery must be proved beyond all reasonable doubt: see Earnist John White v. Mrs. Kathleon Olive White (nee Meade) and others, AIR 1958 S.C. 441(60), Deivarnal Achi v. Kasi Viswanathan Chettiar and another, AIR 1957 Madras 766(61), and Patrick Donald Stracey v. Eileen Stracey and another, AIR 1957 Assam 66(62). What, then, was the result and the effect of the procedure adopted by the Commission? Mrs. Gandhi and Mr. Mukherjee were denied their right to cross-examine the witnesses who testified before the Commission. Initially this right was denied to them because they were not served with notice under section 8B. They were merely ‘invited’ to ‘assist’ at the inquiry. When they demanded that they be served with notices under section 8B they were told the inquiry was being conducted in two stages, sometimes described as ‘preliminary’ and ‘final’ and at other times a ‘general’ and ‘specific’. It was apparent on the face of the case summaries, which had been prepared even before the public hearings commenced, that the reputation of Mrs. Gandhi and Mr. Mukherjee was very much at stake. For example, the title of the case summary in the ‘case of the four officers’ was: ‘Misuse of Power and Institutional of False Criminal cases against Four Senior Officials by the C.B.I. at the instance of Smt. Indira Gandhi, the then Prime Minister’. That left no doubt that Mrs. Gandh's alleged ‘misconduct’ was the subject of inquiry, Or, in any case, that her reputation was ‘likely to be prejudicially affected by the inquiry’. In these circumstances, notices under section 8B should have been issued to Mrs. Gandhi and Mr. Mukherjee forthwith. There was no additional material brought on the record of the Commission after the ‘invitation’ stage. The fact that on the same material notices under section 8B were issued soon afterwards indicates that there was no justification for withholding them earlier. In his Ruling of 21st November 1977 the Chairman said that he had devised the procedure so that he ‘may not waste (ins) time as well as the public time in issuing notices in the first instance against a number of persons who may or may not be concerned in the commission of excesses’. It was not legally permissible to devise a procedure with the object of deferring the application of section 8B. After the ‘invitation’ stage was brought to an end by the recalcitrance of Mrs. Gandhi and Mr. Mukherjee, notices under section 8B were served on them, but they were still deprived of their right to cross-examine witnesses, specifically granted by section 8C, on the ground that they had not furnished statements as required by rule 5(2)(a). That rule, as I have said, had no application to persons falling under section 8B. Then they were sought to be examined by the Commission itself and also-subjected to cross-examination by counsel for the Central Government. And, all this was before the Central Government had produce or even been called upon to produce their evidence. Rule 5(5)(a) was entirely ignored. Furthermore, the object of the examination by the Commission at this stage was avowedly to ‘ascertain’ the ‘defence’ or ‘determine’ the ‘version’ of Mrs. Gandhi and Mr. Mukherjee. This was driving a coach and six through the Act and the Rules. It is difficult to repel Mr. Bhatia's submission that the main object of the Commission was to somehow bring Mrs. Gandhi into the witness-box and subject her to cross-examination. Sections 8B and 8C are rules procedure which are founded on principles of natural justice. Frequently, rules of procedure are decried by impatient people who do not understand their importance. They need to be reminded of Mr. Justice Frankfurther's memorable aphorism in Benjamin McNabb, Freeman McNabb and Raymond McNabb v. United States of America, 318 U.S. 332(63): ‘The history of liberty has largely been the history of observance of procedural safeguards.’ That statement was echoed by the Law Commission in its Report on the Commissions of Inquiry Act and the Supreme Court in Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 S.C., 1548(64), Mr. Justice Jackson, with whom Mr. Justice Frankfurther concurred, explained it very tellingly in Edward J. Shaughnessy, District Director of Immigration and Naturalization v. United States of America Ex. Re 1, Ignats Mezei, 345 U.S. 206(65): Procedural fairness, if not all that originally was meant by due process of law, is at leas what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which comprise substantive law. If it be conceded that in some way this alien could be confined, does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration. It is for such reasons that the courts have developed the rule that ‘where power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden’: see Nazir Ahmad v. King-Emperor, AIR 1936 P.C. 1976 S.C. 789(67) and Charan Lal Sahu v. Shri Neelam Sanjeeva Reddy, AIR 1978 S.C. 499(68). Of course, not all rules of procedure are of equal importance. A ‘failure to comply with a directory requirement does not render the exercise of power void’. But, the ‘Failure to comply with a mandatory requirement renders the purported exercise of power void: the purported exercise of power is ultra vires or outside jurisdiction’: see Administrative Law Cases and Materials by Brett and Hogg (2nd Edn.) page 381. Professor Wade in an article in Volume 84 of the Law Quarterly Review says at page 97 that ‘an authority which disregards a mandatory procedural condition is stepping outside the limits which confine its powers’. Many examples of ‘Procedural ultra vires’ are collected in Administrative Law by Garner (3rd Edn.) at page 130. The Supreme Court noticed and approved the doctrine of ‘procedural ultra vires’ in Smt. Ujjam Bai v. State of Uttar Pradesh and another, AIR 1962 S.C. 1621(69). And in Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 S.C. 78(70) it quoted with approval the following passage from one of its earlier decisions: ‘Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question.’ The only question which remains is whether the rules contained in sections 8B and 8C are mandatory or otherwise. Violation of rules of natural justice has been held to result in loss of jurisdiction even when they do not have statutory force. In Anismipic, Ltd. v. The Foreign Compensation Commission and another, (1969) 1 All. E.R. 208 (supra) Lord Poares said: ‘Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervene stage, while engaged on a proper enquiry, the tribunal may apart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. Further it is assumed, unless special provisions provide otherwise, that the tribunal will make its enquiry and decision according to the law of the land. For that reason the courts will intervene when it is manifest from the record that the tribunal, though keeping within its mandated area of jurisdiction, comes to an erroneous decision through an error of law. In such a case the courts have intervened to correct the error.’ And, there is a passage in the judgment of Lord Reid to the like effect, which was cited and followed in Union of India v. Tarachand Gupta & Bros., AIR 1971 S.C. 1558. (supra). In my opinion, there can be no doubt that sections 8B and 8C are mandatory. One might even call them ‘statutory rules of natural justice’. Since they were not complied within respect of Mrs. Gandhi and Mr. Mukherjee, the proceedings of the Commission become void and ultra vires. The Commission stepped outside it jurisdiction and lost its powers. Therefore, the Chairman was not ‘legally competent’ to administer the oath to Mrs. Gandhi and Mr. Mukherjee, and in asking them questions he was not exercising his ‘legal powers’. Whether the Commission complied with Section 5(4) of the Commissions of Inquiry ct. In section 5(4) of the Commission of Inquiry Act is provided as follows: ‘The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898, forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of the Criminal Procedure, 1898.’ It will be observed that this section requires the Commission to record ‘the statement of the accused’ before forwarding the case to the Magistrate. Initially Mr. Bhatia contended that the Commission had not properly recorded the statements of Mrs. Gandhi and Mr. Mukherjee on any of the occasions in question. However, ultimately he confined his objection to the proceedings on 11th January 1978, and submitted that Mrs. Gandhi's statement had not been recorded in respect of the alleged offence under section 178 of the Indian Penal Code, and, therefore, the Commission had no jurisdiction to forward a complaint to the Magistrate as regards that offence. Of course it is apparent from the record that Mrs. Gandhi's statement was not recorded regarding the alleged offence under section 178, the reason being that the Chairman did not at that time have that section in mind. It is not even mentioned in his order. It may be, as Mr. Bhatia suggested, that if on that occasion the Chairman had inquired from Mrs. Gandhi why she was not willing to take the oath, she would have said that she had no objection to taking it. However, Mr. Venugopal has cited re C. Kanaran Nair, AIR 1954 Madras 893(71), in which it has been held, in a case under section 480 of the Criminal Procedure Code, that ‘failure to take the statement of the accused does not by any means invalidate the proceedings’. In that case the accused ran away after abusing the judge, and hence it was not possible to record his statement. I think, the case demonstrates that it is not possible to lay down as a rule of law that a failure to record the statement of the accused invalidates the proceedings. Thus, whilst I agree that Mrs. Gandhi's statement was not recorded on 11th January 1978 in respect of the alleged offence under section 178 of the Indian Penal Code, I do not agree that the proceedings before the Magistrate, in respect of that offence, were in consequence rendered invalid. Whether the Proceedings against Mrs. Gandhi and Mr. Mukherjee should be Quashed? The power of the High Court to quash proceedings pending in a court below is not specifically mentioned in any section of the Criminal Procedures Code It is derived from section 482, which reads as follows: ‘Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.’ The power to quash proceedings issues from the power ‘to prevent abuse of the process of any court or otherwise to secure the ends of justice’. A power so wide as this cannot conceivably be confined to any defined category of cases, In R.P. Kapur v. State of Punjab, AIR 1960 S.C. 866(72), the Supreme Court described certain classes of cases in which the power ought to be exercised, but began with the preface: It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. Some of the reasons for vesting the High Court with this power were elaborated in State of Karnataka v. L. Muniswamy and others, AIR 1977 S.C. 1489(73), as follows: ‘In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutory public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment of persecution. In a criminal case, the voiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of more law though justice has got to be administered according to laws made by the legislature.’ Mr. Venugopal cited The Delhi Development Authority v. Smt. Lila D. Bhagat and others, AIR 1975 S.C. 495(74), for the proposition that, in proceedings to quash, the High Court should not normally go into questions of fact or appreciate evidence. I accept that proposition, but all the questions with which I have dealt in this judgment are questions of law, arising on the face of the record. Indeed, they arise on the face of the complaints themselves, as the proceedings before the Commission are either set out therein or annexed thereto. The other submission which Mr. Venugopal made was that these applications ought to have been moved by Mrs. Gandhi and Mr. Mukherjee at a much earlier stage, if not immediately after the complaints were lodged in the court of the Magistrate. He cited Amar Chand Agarwal v. Shanti Bose and another, AIR 1973 S.C. 799(75), for the purpose. Mr. Venugopal alleged that the real purpose of Mrs. Gandhi and Mr. Mukherjee was to delay the proceedings. Although delay in moving the High Court is certainly a factor to be taken into account, it is not of overriding significance. It is better that justice be done late, than never. In K.V. Krishnamurthy Iyer, and others v. The State of Madras, AIR 1954 S.C. 406(76), the Supreme Court quashed proceedings after 203 prosecution witnesses had been examined because the interests of justice so demanded. Here, the prosecution has produced only one witness in each case, and the defence has yet to begin. It may be that Mrs. Gandhi and Mr. Mukherjee would have been better advised to move this court soon after the complaints were lodged with the Magistrate, but the delay of eight or nine months in moving this court is not, in my opinion, a good enough reason to deprive them of relief if they are otherwise entitled. So, I go back to the question whether it is in the interests of justice to quash the proceedings against Mrs. Gandhi and Mr. Mukherjee. It was objected by Mr. Venugopal that many of the points argued before me have not been raised in Mrs. Gandhi's petition. It is true that some of the points have not been raised, or, at least, not raised with the precision which is desirable. But, all the points have been raised in the petition by Mr. Mukherjee. And, there are no strict rules of pleading in the Criminal Procedure Code as those in the Civil Procedure Code. All the points that have been argued arise from the face of the record and there has been no element of surprise. Therefore, I do not attach any great weight to this objection. For the reasons that I have given in this judgment it seems clear to me that Mrs. Gandhi and Mr. Mukherjee cannot possibly be found guilty of offences under sections 178 and 179 of the Indian Penal Code. In these circumstances, it would be a mere waste of public time and money to allow the prosecutions to continue. To secure the ends of justice, I think, it is necessary that those proceedings be quashed. Accordingly, the two petitions by Mrs. Gandhi, and the one by Mr. Mukherjee, are allowed, and the proceedings pending against them in the court of the Chief Metropolitan Magistrate, Delhi, are quashed.
O R