//'Marad commission report may not stand the test of law'

'Marad commission report may not stand the test of law'

Ignatius Pereira, The Hindu, Sep 29, 2006

Legal circles say the panel has not adhered to the principle of natural justice Legal circles point out that the panel has not adhered to the principle of natural justice

KOLLAM: In spite of all the heat and dust over the Thomas P. Joseph Commission report on the Marad riots, legal circles well versed with the Commissions of Inquiry Act 1952 have expressed the opinion that it will not be surprising if the report is declared non est or invalid if challenged in a court of law. This is because the Commission had not adhered to Section 8 B of the Act which stipulates adherence to the principles of natural justice. The legal circles say that if the Government takes any decision based exclusively on the report, including a CBI probe recommended, it can be easily challenged and rendered invalid.

In the report, the Commission has passed strong strictures against three well known politicians, four bureaucrats, three political parties, the Rashtriya Swayamsevak Sangh and the National Development Front. Based on the report, the Government has already decided to take action against the four officers. Liable to be expunged

According to the legal circles, all these strictures are liable to be expunged if the individuals or organisations concerned challenge it in court. This is because the Commission had not adhered to Section 8 B of the Act.

In a Supreme Court verdict (by Justice Brijesh Kumar in September 2003 on an appeal filed by the State of Bihar against the Patna High Court verdict expunging the strictures against the BJP leader L.K. Advani, passed in a similar commission report on the 1986 Bhagalpur riots) it was pronounced that “failure to comply with the principles of natural justice renders the action non est as well as the consequences thereof.''

Strong strictures were passed against Mr. Advani in the report. Mr. Advani's contentions were based on the argument that the commission denied him natural justice in violation of Section 8 B of the Act. The Supreme Court dismissed the appeal of the State of Bihar. Mr. Justice Brijesh Kumar states in the judgement that “it is incumbent upon the Commission to give an opportunity to a person before any comment is made or opinion expressed which is likely to prejudicially affect that person.''

In his contention before the Patna High Court, Mr. Advani had submitted that he was not issued notice under Section 8 B of the Act. He submitted further that if he had been given notice it might have provided him an opportunity to dispel whatever misconceptions were entertained in the findings of the report.

According to advocate G. Mohan Raj, who was counsel for the Kerala Police in the Justice T.K. Chandrashekaradas Commission, initial examination of a person against whom strictures have been passed will not suffice to meeting the provisions of Section 8 B of the Act. The Act stipulates that at any stage of the inquiry, if the commission 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 and to produce evidence, if any, in his defence.