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CASE NO.: Appeal (civil)  1792 of 1997

PETITIONER: State of Bihar                                   

RESPONDENT: Lal Krishna Advani & Ors.                        

DATE OF JUDGMENT: 16/09/2003

BENCH: Brijesh Kumar & Arun Kumar

JUDGMENT: JUDGMENT

BRIJESH KUMAR, J.

               In this appeal, preferred by the State of Bihar, ultimately the  question which falls for consideration is the effect of non-compliance of   all time tested and ancient principle of natural justice.  One cannot be  condemned unheard is one of the attributes of the principles of natural  justice, which operates even in absence of a written provision under the  law. Though in the case in hand there is such a provision which,  according to the appellant, was not necessary to be complied with, but the  High Court of Patna has held to the contrary.  It relates to applicability of  Section 8B of the Commissions of Inquiry Act, 1952 (60 of 1952) (for  short ’the Act’).                   In the year 1989 some communal riots took place in  Bhagalpur District, State of Bihar, resulting in many deaths and left some  others injured.  Undoubtedly, it was a matter of concern and the State  Government decided to constitute a Commission of Inquiry under Section  3 of the Act, which reads as under : "3. Appointment of Commission.- (1) The  appropriate Government, may, if it is of opinion  that it is necessary so to do, and shall, if a  resolution in this behalf is passed by [each House  of Parliament or, as the case may be, the  Legislature of the State,] by notification in the  Official Gazette, appoint a Commission of Inquiry  for the purpose of making an inquiry into any  definite matter of public importance and  performing such functions and within such time as  may be specified in the notification, and the  Commission so appointed shall make the Inquiry  and perform the functions accordingly:

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(2) The Commission may consist of one or more  members appointed by the appropriate  Government, and where the Commission consists  of more than one member, one of them may be  appointed as the Chairman thereof.

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(4) The appropriate Government shall cause to be  laid before [each House of Parliament or, as the  case may be, the Legislature of the State,] the  Report if any, of the Commission on the inquiry  made by the Commission under sub-section (1)  together with a memorandum of the action taken

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thereon, within a period of six months of the  submission of the Report by the Commission to the  appropriate Government.]"

The terms of the Reference are as follows : "a)     to enquire into the facts and circumstances  leading to communal disturbances in the district of  Bhagalpur and adjacent areas on 24th October,  1989 and thereafter;

b)      to enquire into whether these disturbances  were pre-planned and, if so, the elements  responsible for the same;

c)      to enquire whether measures taken by the  District Administration to prevent and deal with  the said disturbances were timely and adequate,  and to fix responsibility for lapses if any, in this  regard with the said disturbances were timely and  adequate, and to fix responsibilities for lapses if  any, in this regard;

d)      to recommend measures for preventing  recurrence of such disturbances;

e)      to consider such other matter relating to  these communal disturbances and make such  recommendations as the Commission may think it  proper and necessary."

It was initially a single Member Commission and Mr.Justice  Ram Nandan Prasad was appointed as a sole Member of the Commission.   Subsequently, however, on 20.09.1993 two others were also notified as  Members of the Commission, namely, Mr.Justice Ram Chandra Prasad  Sinha and Mr.Justice S.Shansul Hasan.  They are also retired Judges of the  High Court.  The Commission seems to have been divided in its opinion;  one report was  handed down by Justice Ram Nandan Prasad and the second  by the other two members, namely, Mr.Justice Ram Chandra Prasad Sinha  and Mr.Justice S.Shansul Hasan.  The respondent no.1 Shri Lal Krishna  Advani and some others felt aggrieved by certain parts of the Report  submitted by the two members of the Commission.  In this appeal we are  concerned with the remarks relating to the respondent no.1 alone.  The  respondent no.1 felt that such remarks made in the Report submitted by the  two members of the Commission were uncalled for and were not necessary  to be made looking to the terms of the Reference and in any case the remarks  are such which impinge upon his reputation, as a public man. According to  him, his reputation and image was adversely affected in the eyes of the  people and such parts of the report were liable to be expunged, and the  appellant was required to be directed not to take any action in pursuance of  such observations against him, in the Report, more so, when the respondent  no.1 was not issued notice under Section 8B of the Act.  If the notice had  been given it might have provided an opportunity to the respondent no.1 to  dispel whatever misconceptions were entertained and the findings recorded  in the Report.  It would be appropriate to peruse the provision as contained  under Section 8B of the Act : "8B. Persons likely to be prejudicially affected  to be heard.- If, at any stage of the inquiry, the  Commission,-

(a)     considers it necessary to inquire into the  conduct of any persons or

(b)     is of opinion that the reputation of any  person is likely to be prejudicially affected

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by the inquiry,  

the Commission shall give to that person a  reasonable opportunity of being heard in the  inquiry and to produce evidence in his defence:

       Provided that nothing in this section shall  apply where the credit of a witness is being  impeached."

One of the paragraphs of the Report in which a reference to Mr.Advani  has been made as also quoted in the judgment of the High Court, reads as  follows : "â\200¦..Thus Jansangh disappeared and became a part  of the Janta Party.  Along with people like . . . . ..    Mr.Advani became Information and Broadcasting  Minister and Vajpaee the Minister of External  Affairs, while invidiously Mr.Advani spreading  the message of his cult through the official  mediaâ\200¦."

Paragraph 63 is also quoted, which reads as under :

"â\200¦..Mr.Advani really spilled the beans and  revealed the real intention of the BJP in his  statement Reported in the PANCHAJANYA and  copied by the ’Times of India’ dated January 30th,  1993"â\200¦.. "Speaking for ourself, were distressed to  read that statement not out of fear because our life  and our religion are both safe in this country but  because of an eminent national leader should resort  to threat of rioting unless the norms set by him are  followedâ\200¦.".

Yet another part of the Report in paragraph 625 reads as under :

"â\200¦â\200¦The demand by him that Muslim and  Christian should style themselves as Mohammadi  Hindu and Christian Hindu etc. is a proof of this  depraved an achronistion ideologyâ\200¦." (v) "â\200¦.One  became the protector of Islam by peddling the  slogan of "ISLAM IN DANGER" the other is  exactly doing the same thing by peddling the  concept of protecting the Hinduâ\200¦."(vi)  

In the same part of the Report paragraph 626 reads as under :

"â\200¦..The Islam which Mr.Jinna and the Muslim  League tried to save led to the chaotic condition in  Pakistan.  Hinduism or Sanatan Dharma which  Mr.Advani is trying to save is creating the same  chaotic condition in Indiaâ\200¦.."

The case of the respondent no.1 has been that such findings and  observations as recorded by the two member Report of the Inquiry  Commission objectionably painted him in the minds of the people  affecting his reputation and bringing down his image in the public.                 The High Court, in our view, has been rightly cautious in  observing that it was not concerned about the merit on the question of  appointment or the recommendations of the Commission but it confined  its inquiry to the parts of the Report which, according to the respondent  no.1, were objectionable and it was necessary that he was allowed an  opportunity before making any comment on his alleged conduct.  The  High Court, after elaborate discussion on the point involved, partly  allowed the writ petition,   ordering that such parts of the report shall be

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inoperative and no action can be taken on the basis thereof.                    The High Court, while referring to a decision Reported in  AIR 1967 SC p. 122, The State of Jammu and Kashmir & Ors. Vs.  Bakshi Gulam Mohammad & Anr., observed that an authority who  takes a decision, which may have civil consequences and affects right of  a person, the principle of natural justice would at once come into play.   Reputation of an individual is an important part of one’s life.  The High  Court then quoted a passage from a decision of this Court reported in  AIR 1989 SC p.714 Smt.Kiran Bedi and Jinder Singh Vs. Committee  of Inquiry & Anr., which passage contains the observations from an  American decision in D.F.Marion V. Minnie Davis, 55 American LR  171, reads as follows : "The right to enjoyment of a private reputation,  unassailed by malicious slander is of ancient  origin, and is necessary to human society.  A good  reputation is an element of personal security and is  protected by the Constitution equally with the right  to the enjoyment of life, liberty and property."

Some decisions, to which our attention has been drawn by Shri Harish  N.Salve, learned senior counsel appearing for the respondent no.1, may  be referred.  1983 (1) SCC p.124, Board of Trustees of the Port of  Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors.,  wherein it was observed that right to reputation is a facet of right to life  of a citizen under Article 21 of the Constitution.  He has also referred to  the International Covenant on Civil and Political Rights, 1965 (ICCPR),  recognizing right to have opinions and the right of freedom of expression  subject to the right of reputation of others.  The Covenant provides : "1. Everyone shall have the right to hold opinions  without interference.

2.      Everyone shall have the right to freedom of  expression; this right shall include freedom to  seek, receive and impart information and ideas of  all kinds, regardless of frontiers, either orally, in  writing or in print, in the form of art, or through  any other media of his choice.

3.      The exercise of the rights provided for in  paragraph 2 of this article carries with it special  duties and responsibilities.  It may therefore be  subject to certain restrictions, but these shall only  be such as are provided by law and are necessary;

(a)     For respect of the rights or reputations of  others;

(b)     For the protection of national security or of  public order (ordre public), or of public  health or morals."

It is thus amply clear  that  one is entitled to  have and preserve, one’s  reputation and one also has  a right to protect it. In case any authority, in  discharge of its duties fastened upon it under the law, traverses into the  realm of personal reputation adversely affecting him, must provide a  chance to him to have his say in the matter.  In such circumstances right  of an individual to have the safeguard of principles of natural justice  before being adversely commented upon by a Commission of Inquiry is  statutorily  recognised and violation of the same will have to bear the  scrutiny of judicial review.  A reference may be made to  [1984] A.C.  808, Peter Thomas Mahon Vs Air New Zealand Ltd & Ors.                 The provision as contained under Section 8B of the Act  quoted above, was brought into the statute  book by Amending Act 79 of  1971.                  It may be noticed that the amendment was brought about,

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about 20 years after passing of the main Act itself.  The experience  during past two decades must have made the Legislature to realize that it  would but be necessary to notice a person whose conduct the  Commission considers it necessary to inquire into during the course of  the inquiry or whose reputation is likely to be prejudicially affected by  the inquiry. It is further provided that such a person would have a  reasonable opportunity of being heard and to adduce evidence in his  defence. Thus the principle of natural justice was got inducted in the  shape of statutory provision.  It is thus incumbent upon the Commission  to give an opportunity to a person, before any comment is made or  opinion is expressed which is likely to  prejudicially affect that person.  Needless to emphasise that failure to comply with principles of natural  justice renders the action non-est as well as the consequences thereof.                 Shri Dinesh Dwivedi, learned counsel appearing for the  appellant submits that since no action has been taken against the  respondent no.1  so far, in pursuance of the report of the Inquiry  Commission there was no occasion for him to move the Court in the  matter. It was not the appropriate stage to raise any grievance by filing a  petition challenging certain observations made by the Commission of  Inquiry. The petition was thus premature.  We feel that it may not be  necessary for a person to wait till certain action is initiated by the  Government considering the report of the Inquiry Commission where the  observations made by the Commission are such which militate against  the reputation of a person and particularly without giving any chance to  such a person to explain his conduct.  It would be open for him to move  the Court for deletion of such remarks made against him violating the  provisions of Section 8B of the Act.                 It is then submitted by Shri Dwivedi that the Commission  was appointed to inquire as to whether the riots "were pre-planned and, if  so, the elements responsible for the same".  The Commission was also  required to recommend measures for preventing such recurrences.  Therefore, the terms of the Reference were quite wide and the anxiety of  the Government was only to identify the elements behind such  disturbances and to take sufficient measure to prevent recurrence in  future.  The Commission was not inquiring into the conduct of the  respondent no.1 in particular.  These were some general observations  touching the matter under reference to the Commission. In this  connection, relying upon a decision reported in 1977(4) SCC p.608,  State of Karnataka vs. Union of India & Anr., a seven Judge bench  judgment, referred to the observations made in paragraph 77 to say that  the scope of such inquiries is wide enough to cover anything reasonably  related to the matter under inquiry. It is further submitted in reference to  observations made in paragraphs 184 and 186 of the aforesaid decision  that the function of the Commission is purely  fact-finding and its  pronouncement is neither binding nor a definitive judgment.  The  Commission  is required to submit its report, which may or may not be  accepted by the appointing authority.  It is further submitted that  the  stage for any grievance arrives when in consideration of the report the  authority decides to take any action not otherwise.  The Commission has  no power of adjudication in the sense of passing an order which can be  enforced.  A reference has also been made to a case reported in AIR 1956  SC page 66, Brijnandan Sinha Vs. Jyoti Narain, a Division Bench  Judgment, to indicate that report made by the Commissioner under the  Public Servants (Inquiries) Act (37 of 1850) is merely expression of his  opinion and it lacks both finality and authoritativeness.  Learned Counsel  has then referred to 1959 SCR page 279, Shri Ram Krishna Dalmia Vs.  Shri Justice S.R.Tendolkar & Ors., a Constitution Bench Judgement, to  submit that the recommendations of Commission of Inquiry are not  enforceable proprio vigore. It is not an adjudication.  It is merely a  recommendation of the Commission.  On the basis of the decisions  referred to above, much stress has been given  on the point that this was  not the stage for respondent no.1 to have approached the Court raising  any grievance in respect of some observations made here and there while  inquiring into the Bhagalpur communal riots, its reasons and to  recommend measures to check such  recurrences in future.

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               We have already observed that had it been only a question of  any adverse action being taken against the person against whom some  adverse finding has been recorded, the contention of the learned counsel  for the appellant may perhaps would have been entertainable.  The  government actually takes action or it does not or the fact that the report  is yet to be considered from that angle, cannot be a reason to submit that  it won’t be appropriate stage to approach the Court.  There may be  occasions where after consideration of report the government may not  decide to take any action against the person concerned yet the  observation and remarks may be such which may play upon the  reputation of the person concerned and this aspect of the matter has been  fully taken care of under clause (b) of Section 8B of the Act.  It is not,  therefore, necessary that one must wait till a decision is taken by the  government to take action against the person after consideration of the  report.  We have already dealt with the point about the right to have and  protect one’s reputation.  We, therefore, find no force in the submission  that the respondent no.1 had approached the Court at  pre-mature stage.   No other point has been urged on behalf of the appellant. In our view, the  judgment of the High Court calls for no interference.                   In view of the discussion held above, the appeal is  dismissed.  There will, however, be no order as to costs.