http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (civil) 1792 of 1997

PETITIONER:

State of Bihar

RESPONDENT:

Lal Krishna Advani & Ors.

DATE OF JUDGMENT: 16/09/2003

BENCH:

Brijesh Kumar & Arun Kumar

JUDGMENT:

JUDGMENT

BRIJESH KUMAR, J.

In this appeal, preferred by the State of Bihar, ultimately the

question which falls for consideration is the effect of non-compliance of

all time tested and ancient principle of natural justice. One cannot be

condemned unheard is one of the attributes of the principles of natural

justice, which operates even in absence of a written provision under the

law. Though in the case in hand there is such a provision which,

according to the appellant, was not necessary to be complied with, but the

High Court of Patna has held to the contrary. It relates to applicability of

Section 8B of the Commissions of Inquiry Act, 1952 (60 of 1952) (for

short 'the Act').

In the year 1989 some communal riots took place in

Bhagalpur District, State of Bihar, resulting in many deaths and left some

others injured. Undoubtedly, it was a matter of concern and the State

Government decided to constitute a Commission of Inquiry under Section

3 of the Act, which reads as under :

"3. Appointment of Commission.- (1) The

appropriate Government, may, if it is of opinion

that it is necessary so to do, and shall, if a

resolution in this behalf is passed by [each House

of Parliament or, as the case may be, the

Legislature of the State,] by notification in the

Official Gazette, appoint a Commission of Inquiry

for the purpose of making an inquiry into any

definite matter of public importance and

performing such functions and within such time as

may be specified in the notification, and the

Commission so appointed shall make the Inquiry

and perform the functions accordingly:

xxx xxx xxx

(2) The Commission may consist of one or more

members appointed by the appropriate

Government, and where the Commission consists

of more than one member, one of them may be

appointed as the Chairman thereof.

Xxx xxx xxx

(4) The appropriate Government shall cause to be

laid before [each House of Parliament or, as the

case may be, the Legislature of the State,] the

Report if any, of the Commission on the inquiry

made by the Commission under sub-section (1)

together with a memorandum of the action taken

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

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.