Conducting inquiries By A.G. Noorani

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INQUIRIES lie at the very heart of the democratic process. They ensure accountability of the state to the legislature and to the people who elected them. The recent statements by Prime Minister Boris Johnson’s once trusted aide Dominic Cummings before a parliamentary panel shook the government. But the question commonly discussed in Britain is whether the prime minister will set up an inquiry.

The Basic Law of the Federal Republic of Germany (1949) has a wise provision in Article 44:

“(1) The Bundestag has the right, and upon the motion of one quarter of its members the obligation, to set up committees of inquiry which shall hear evidence in public. The public may be excluded.

“(2) The rules of criminal procedure shall apply mutatis mutandis to the hearing of evidence. The privacy of correspondence, posts and telecommunications shall remain unaffected.

“(3) Courts and administrative authorities shall be bound to render judicial and administrative assistance.

“(4) Decisions of committees of inquiry shall not be subject to judicial review. The courts shall be free to evaluate the facts on which the inquiry is based.”

Thus one fourth of the total membership can force the appointment of a committee of inquiry.

The UK has a chequered past in the setting up of inquiries

Until 1921, the British practice relied on select committees of parliament. Lloyd George, Lord Reading, Lord Samuel, and the Master of Elibank were accused of having favoured the English Marconi Company by accepting its tender for the construction of state-owned wireless stations and of having made use of this information, acquired as ministers, to gamble in the company’s shares by buying some in anticipation of the contract. Lloyd George and Lord Reading, while denying in parliament any dealings with the English company, omitted to say they had bought shares in the American Marconi Company which had also risen in value. The select committee produced two reports, one exculpating and the other condemning the ministers. The result was the Tribunals of Inquiry (Evidence) Act of 1921.

The report of a budget disclosure inquiry, published in May 1936, ended the career of popular Labour politician J.H. Thomas. The 1936 budget increased the standard rate of income tax by three pence and also the tea duty. It was indicated that someone had advance knowledge of the proposed tax rise. A tribunal of inquiry found that there had been unauthorised disclosure by J.H. Thomas to two of his friends who then made use of this information for private gain.

The Lynskey Tribunal was appointed “for inquiring into a definite matter of urgent public importance … whether there is any justification for allegations that payments, rewards or other considerations have been sought, offered, promised, made or received by or to ministers of the Crown or other public servants in connection with licences or permissions required under any enactment, regulation or order or in connection with the withdrawal of any prosecution… .”

This tribunal’s report records: “The first question we had to decide was one of procedure. A tribunal appointed under the Act of 1921 is itself responsible for the collection of evidence, taking statements from witnesses, presenting their evidence then testing its accuracy and finally finding the facts. …[W]here there are a number of transactions to be investigated it would not merely be inconvenient but physically impossible… .

“The services of the treasury solicitor, Sir Thomas Barnes … and his staff were placed at our disposal. We also had the assistance of Superintendent A.J. Thorp and other officers of the Metropolitan Police. The treasury solicitor with the assistance of the police interviewed all persons whom they thought might be able to give useful information … and statements were taken from them. These statements were then placed before us, and we directed what further inquiries should be made… .”

India’s Commissions of Inquiry Act, 1952, was modelled on the British Act and some commissions were appointed which did their job efficiently. In Britain, however, Lord Denning was appointed to probe into the affair between John Profumo and a woman. His lie to parliament terminated a good career. Lord Denning acted without the authority of the Act of 1921 and worked in secret. In 2005, the Tribunals of Inquiry (Evidence) Act 1921, under which tribunals galore had worked was repealed by the Inquiries Act, 2005.

India did not undergo such a legislative upheaval. It underwent political upheavals which robbed commissions of inquiry of public esteem, their own self-respect and much else. Since 1972, all governments have nominated favourites to preside over inquiry commissions to persecute their opponents. The commission is a rusted instrument today.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 5th, 2021