A law unto itself

The Jain Commission has run amuck, flouting the Commissions of Inquiry Act, its own terms of reference, the rules of natural justice and the norms of the judicial function.

JUSTICE M.C. JAIN has driven a coach and four through the law in his Final Report. Let us consider first the law and, next, Jain's conduct. Section 3 of the Commissions of Inquiry Act puts a strong fetter on the Government as well as the Lok Sabha's power to appoint a Commission of Inquiry. A Commission can be appointed only "for the purpose of making an inquiry into any definite matter of public importance." In the case of a former Chief Minister of Bihar, K. B. Sahay, the Supreme Court said: "If the charges were vague or speculative suggesting a fishing expedition, we would have paused to consider whether such an inquiry should be allowed to proceed." (AIR 1969 S.C. 258 to 262; emphasis added, throughout).

The Royal Commission on Tribunals of Inquiry headed by Lord Justice Salmon noted realistically that "as the agitation for an inquiry is very often the result of nothing more than general allegation and rumour, it is necessary to keep the Tribunal within reasonable bounds... The Act lays down ... that what is to be inquired into shall be a 'definite matter'. Accordingly, no Tribunal should be set up to investigate a nebulous mass of vague and unspecified rumours. The reference should confine the inquiry to the investigation of the definite matter which is causing a crisis of public confidence. (1966; Cmnd. 3121, p. 30, para 78). The Commissions of Inquiry Act of 1952 is based on the British statute, the Tribunals of Inquiry (Evidence) Act, 1921.

The Jain Commission did just that - launch a fishing expedition spread over seven years. Similar violations of the law by the Thakkar Commission that inquired into Indira Gandhi's assassination and the Thakkar-Natarajan Commission that inquired into the Fairfax case have gone unnoticed. Secondly, appointed to inquire into a "definite" matter of public importance, the Commission's report must be based on legal evidence and it must either give a finding of fact or decline to do so if the evidence is inadequate. It is utterly impermissible for it to voice "suspicion", whether directly or indirectly. To mention mere "possibilities" as distinct from probabilities and refuse to "rule out" some is calculatedly to raise a suspicion that they did occur, the lack of evidence notwithstanding. No judicial exercise, be it in a court of law or an inquiry, can indulge in such an exercise.

The third violation of the law is as gross and occurs despite an important but overlooked ruling of the Supreme Court. No Commission of Inquiry has any right to recommend prosecution or interrogation of any individual. On December 11, 1956, the Government of India set up a Commission of Inquiry to go into the affairs of companies controlled by Ramkrishna Dalmia and his associates. Clause 10 of the terms of reference of the Commission directed it to inquire into "any irregularities" in those firms, except those in respect of which criminal proceedings were pending in a court of law and to recommend thus "and the action which in the opinion of the Commission should be taken as and by way of securing redress or punishment or to act as a preventive in future cases."

This part of Clause 10 was struck down by the Bombay High Court and the Supreme Court. In the High Court, Chief Justice M. C. Chagla ruled that it was not open to the Commission "to point out to the Union Government what civil or criminal action can be taken with regard to these breaches of law" under the new Companies Act. That was "beyond the legislative competence of Parliament". The Commission was asked "to inform the Government in order that Government should launch civil or criminal proceedings. Now, such an investigation can only be instituted by means of the judicial process and not through the device of a Commission."

Justice Chagla amplified: "It is not open to the Government by this notification to put any individual in the position of an accused, to constitute a Commission to investigate into any offence that he might have committed, and to place before it materials collected so that on the strength of those materials a prosecution could be launched.... it would be competent to Government to get information with regard to breaches of law, so that legislation may be passed to prevent such breaches in future, and there is no reason to suggest why breaches of law referred to in the first part of Clause (10) were to be investigated into only for the purpose of instituting civil or criminal proceedings and not also for the purpose of legislation. In our opinion, therefore, the last part of Clause (10) from the words "and the action" to "in future cases" is ultra vires of the Act and the Government is not competent to require the Commission to make any report with regard to these matters (Ram Krishna Dalmia vs. Mr. Justice S. P. Tendulkar 59, Bom.L.R. 769 at 775).

The ruling was upheld by a unanimous judgment of a Constitution Bench of the Supreme Court delivered by Chief Justice S. R. Das. He held that "there can be no objection even to the Commission of Inquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigor and the statement made by any person before the Commission of Inquiry is, under Section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action 'as and by way of securing redress or punishment' which, in agreement with the High Court, we think, refers in the context to wrongs already done or committed; for redress or punishment for such wrongs, if any, has to be imposed by a Court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high-powered it may be. Having regard to all these considerations it appears to us that only that portion of the last part of Clause(10) which calls upon the Commission of Inquiry to make recommendations about the action to be taken 'as and by way of securing redress or punishment' cannot be said to be at all necessary for or ancillary to the purposes of the Commission." (AIR 1958 S.C. 538).

If the Jain Report is invalid on this score, the Action Taken Report (ATR) falls with it. Section 3(4) of the Act was amended in 1971 to bind the Government to lay before the Lok Sabha (or the State Assembly, as the case may be) the Commission's report "together with a memorandum of the action taken thereon within a period of six months from the submission of the report by the Commission..." The Government's ATR must be based on the Commission's Report ("thereon").

Fourthly, while Commissions of Inquiry are not bound by the Indian Evidence Act, 1872, they are not free to disregard the principles underlying it. The Law Commission's 24th Report (1962) on the Act quoted G.W. Keeton's remarks in his classic Trial by Tribunal (1960): "When the question of the involvement of a particular person in a particular transaction is under consideration, however, the Tribunal restricts itself to the facts admissible under the normal rules of evidence." The Law Commission said approvingly: "We recommend that the same practice should be followed in our country also." It did not recommend any statutory provision lest "a rigid provision may defeat the very object of the Act; namely, to find out the truth." But in its pursuit, speculation cannot be substituted for evidence.

In 1970, Justice Y. V. Chandrachud said in his report on the circumstances relating to the death of Deen Dayal Upadhyaya: "I have to grapple with quite a mass of irrelevant and hearsay evidence.... I could not reject that evidence on the ground of its inadmissiblity under the Evidence Act but that does not mean that I must accept it as good evidence" (p. 7). For instance, the Evidence Act makes inadmissible opinion evidence except in some specific cases such as handwriting or expert evidence (Sections 45 to 51). It is not open to a person to say, for instance, that in his opinion, X conspired to murder Y. He can only depose to facts within his personal knowledge. Jain declared open season on assassination "theories". The Radcliffe Tribunal, set up to probe into allegations in the press on espionage and breaches of security in the Admiralty, noted that "most of these statements, it turned out, were either pure comment expressed in the form of assertion of fact or else inferences put together from other readily accessible sources... Our only function, as we have seen it, is to try to report on the facts coming before us in our inquiry..."

Fifthly, if the Report must be based on facts, not opinions, what must be the standard of proof of the facts? Section 3 of the Evidence Act simply says that "a fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that it exists." There is a similar formulation in regard to a situation in which a fact is "disproved". In contrast is the definition of "not proved" - "neither proved nor disproved". That is the honest course when evidence is inadequate. To seek refuge in suspicion when there is no proof is unjudicial. To arraign people on suspicion is unjust.

IT is all right to decide civil disputes on a balance of probabilities. But no "prudent man" will inflict punishment save on the basis of proof beyond reasonable doubt, the rule in criminal cases. The S.R. Das Commission on Partap Singh Kairon insisted on the stricter standard of proof. For, "No individual shall be condemned on suspicion, however strong. " The Evidence Act does not apply but its fundamentals do.

The J. R. Vimadalal Commission's Report (1978) on J. Vengala Rao, former Chief Minister of Andhra Pradesh, opted for a lower standard but held that "the graver the consequence of a finding in regard to a particular allegation, the higher should be the preponderance of probability which a Commission of Inquiry should require to be established, before it holds a fact to be proved and arrives at a finding to that effect."

These Commissions were concerned with charges of abuse of power by Chief Ministers. How much more stringent must be the standard of proof in a case in which the allegation is culpable neglect that leads to murder or actual complicity in it? No prudent person would accept any other test but proof beyond reasonable doubt.

There was a Commission of Inquiry which had to probe into a bizarre case seven years later. It was honest enough to pronounce "not proved" despite proven indications that could legitimately create suspicion in a layperson's mind. The Judge refused to endorse suspicions despite the fact that he detested the policies of the person under suspicion, Indira Gandhi. Justice P. Jaganmohan Reddy, one of the finest judges to have sat on, was appointed as Commission of Inquiry on June 9, 1977, to probe into the Nagarwala case. On May 24, 1971, R. S. Nagarwala was able to take out Rs. 60 lakhs from the State Bank of India's Parliament Street branch by "mimicking the voice of Mrs. Indira Gandhi" to Chief Cashier Ved Prakash Malhotra. Nagarwala died of heart attack in prison. Neglect by the authorities was patent. The investigating officer, D. K. Kashyap, was killed in a car attack. If Milap Chand Jain had been let loose on the case at the behest of the Government, a mountain of suspicion would have been raised. Justice Jaganmohan Reddy only listed four "incontrovertible facts" - one of them being the fact that Indira Gandhi did not have any account in that branch - but concluded that they were not sufficient to hold that the money belonged to her. "There were several lacunae," he said, and listed them. "To supply an answer to these (lacunae) would force me to leave the safe haven of facts which required to be established by evidence and enter the realm of conjectures and speculation." (p. 176). He did not talk of "needles of suspicion" nor direct a "finger of suspicion".

Lastly, a Commission's report is very much open to judicial review. It can be quashed by the High Court or the Supreme Court if, among other things, it has failed to abide by the rules of evidence or if its reasoning is illogical grossly. The Privy Council set aside the Report of a New Zealand Royal Commission set up under the Commissions of Inquiry Act, 1908. It applied the established rules of evidence, that is, ".... the person making a finding... must base his decision upon evidence that has some probative value.... What is required... is that the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory." Judicial review is allowed in relation to "primary facts... not supported by any probative evidence" and to "reasoning by which the decision-maker justify inferences of fact that he had drawn (but) is self-contradictory or otherwise based upon an evident logical fallacy."

Jain's Report would collapse if these six legal principles were applied to it. Courts in India have for over a century decided conspiracy cases. Jain could not apply the law because it would demolish his suspicions or conspiracy theories. Nor could he articulate them without contradicting himself. Sample this from Volume VI (p.29): "The standard proof is very high in criminal trial and it is difficult to collect such evidence in a case where people feel that there is deeper conspiracy, national and international. The theory of conducting the investigation from the scene of crime to the criminal may sometimes unearth the whole conspiracy but it is also very likely that the whole conspiracy may not be unravelled even after reaching to the executors of the conspiracy from the scene of the crime. In a case of the present nature, in which even the main culprits were not available as they have consumed cyanide and died or are absconding, it is all the more difficult to unearth the conspiracy if any behind the LTTE (Liberation Tigers of Tamil Eelam)." Mark the words "if any."

This special pleading is followed by these bold assertions: "In a Commission of Inquiry, the inadmissible evidence in a Court of Law can form the basis of factual findings and the standard of proof is not so strict before the Commission of Inquiry. The factual findings can be recorded on the basis of even probabilities."

THE entire Volume II on "persons/agencies responsible for the assassination" rests on opinions aired and theories spun heedless of implausibilities and contradictions. The Khalistan Guerilla Force (KGF) issued a press note on May 22, 1991, the day after the assassination, claiming responsibility for the crime jointly with the LTTE. The blast, it said, was made with '''satellite wave control' with the help of computer at a distance of 60 kms... about 90 persons... have been killed." Instant rejection would have been a sound response even in 1991. In 1998 no sensible person would waste a minute on this.

Jain dwells on it at length and ties himself up in knots: "The press note may be fake but it does point to a link with the LTTE." A fake provides guidance: "The Sikh militant group solely has not claimed responsibility. Any group by the name of Khalistan Guerilla Force may be non-existent. The group could have claimed the sole responsibility but it has not done so. If a fake responsibility was to be claimed, the group could have come out with claiming sole responsibility. But the note clearly makes out that it is not only the job of LTTE but there is some other force also behind the LTTE." So, whether the KGF's press note was fake or not, it "proves" a "wider conspiracy" to Jain's satisfaction. Such logic surfaces again on page 118: "Unless there is some link, it is inconceivable that such a claim would have been made in the press release that the assassination has been done in collaboration with the LTTE. It is quite possible that this may be with a view to mislead the investigation and instead of directing investigation towards the LTTE, it may take up investigation against the Khalistani extremists. But the question is how such a press release appeared on 22-5-1991 claiming assassination by the terrorist groups mentioned therein... The information contained therein regarding the method of blast with a satellite control system, may also be incorrect and this information may also be incorrect that Chintamani Raman has been baptised Sikh by taking Amrit at a Gurudwara."

"Without attaching any significance to these informations (sic.), the very fact of the press release having been issued the same night involving the two different terrorist organisations becomes relevant and assumes importance from the point of view of establishing link between the two, and therefore it is quite possible that they may have acted in concert on the basis of which the press release was issued." Such contradictions invalidate the Report.

The record shows that in December 1990, Prime Minister Chandra Shekhar sent Mahant Sewa Dass Singh to London at government expense to bring around Jagjit Singh Chohan and score a "victory" by "settling" the Punjab problem. The Mahant claimed that Chohan told him of a plan to assassinate Rajiv Gandhi. On May 28, 1991, he wrote to the President: "The anti-India forces are diverting the attention from the killers by blaming the Tamils or LTTE. The LTTE has repeatedly denied that they have hand in the killing of Mr. Rajiv Gandhi. So I request to your goodself to ask the Government to direct the energies towards the real killers." Which Judge would waste his time on such a witness?

This letter was produced by D. R. Karthikeyan, then Joint Director of the Central Bureau of Investigation and head of the Special Investigation Team (SIT), when he appeared before Jain on September 19, 1997. It did not worry Jain one bit. The Mahant also said: "The theory about the human bomb is all non-sense." Why? Because Chohan "himself told me this when I spoke to him on telephone after the assassination."

A professional investigator, Karthikeyan saw through the Mahant as any educated person would. Yet, Jain pressed him to accept other "possibilities". He writes: "On being questioned as to whether he rules out any possibility of any conspiracy beyond LTTE, or is there any conspiracy behind LTTE or behind the persons who have been prosecuted, the witness replied that Shri Rajiv Gandhi being a dynamic leader taking bold decisions in many fields, there may have been many groups inimical to him and many conspiracies also. Thus, there are any number of possibilities of any one of those numerous inimical groups targeting him. As an investigator, what he can speak about is about the conspiracy that actually fructified in the killing of Shri Rajiv Gandhi on 21-5-1991 at Sriperumbudur. He, however, stated that he agrees that there are possibilities of other groups inimical to Shri Rajiv Gandhi joining hands with an organisation like the LTTE to eliminate him but his submission is that he is talking about probabilities and not possibilities, and according to him involvement of any other terrorist group was most improbable and stated that LTTE is not just a mercenary who can be made to do a task by somebody else looking to their thinking, the making and the philosophy of the LTTE, and he expressed his firm opinion that in this operation, LTTE acted alone."

The contrast between the two attitudes emerges starkly and to the Judge's disadvantage in Volume V on the 21 suspects, in Chapter X on the SIT's stand "on theories (sic) beyond LTTE." Karthikeyan told him that "there is hardly anything either in its investigation or from intelligence from any quarter to lend credibility to and sustain such theories and hypothesis. In the absence of any evidence they have to remain as such for ever in the realm of endless speculation." He said emphatically: "I, as the leader of the Team, my officers and the prosecutors are confident that there is very little scope of involvement of any person or group beyond the LTTE and the 41 persons charged by us" - notwithstanding the difficulties in investigating a conspiracy several of whose participants were dead or beyond reach. Jain's comment on this defies belief: "His statement does not completely rule out the possibility of involvement beyond LTTE and beyond the 41 charge-sheeted accused persons." This deliberate misconstruction is followed by the admission that "the Commission has done that exercise to the extent possible" - a pursuit of "possibilities" followed by airing of suspicions.

It is in this context that Jain criticises the SIT for not interrogating six public figures, including Chandra Shekhar and Dravida Munnetra Kazhagam president M. Karunanidhi. Regardless of that "failure" by the SIT, "the evidence and circumstances on some theories examined by the Commission do point some accusing finger on some agencies, organisations, outfits or individuals. The Government may adopt such course of action as it may think fit in respect thereto." (Volume V; Page 361). In law, a Commission of Inquiry can only return a finding based on evidence or decline to do so because the evidence is inadequate, as Justice Jaganmohan Reddy did. No Commission has the right to point "an accusing finger" on the basis of "theories" it has examined. No Government is entitled to act on such suspicion and launch a witchhunt.

But the "accusing finger" is waved all over the Report and recommendations for action by way of investigation or interrogation abound (Volume II, pp. 202 and 231). This is not the remit the Commission was given. It is unable to give a finding after years of inquiry and expects others to do better. "No definite clinching evidence establishing the link between Khalistani extremists and LTTE has come before the Commission but the circumstances as considered above do warrant further probe. "But, surely, there was to be some finality to the Final Report. The Commission's order of July 2, 1993 said that "a thorough probe is needed leaving no areas including the areas covered by the charge-sheet". That was five years ago. After nearly seven years of labour, the Jain Commission can do no more than urge "further scrutiny, examination and action in accordance with law," in respect of the 21 suspects it names. But, as Jain himself admitted, "This Commission is required to prove the criminal conspiracy. It has to find out the persons and agencies responsible for conceiving, preparing and planning the assassination of Shri Rajiv Gandhi and whether there was any conspiracy behind it."

THE ATR is motivated. Tongue firmly in cheek, it quotes the Interim and Final Reports together on some points to establish, without comment, Jain's inconsistencies. On his quaint notions of evidence, the ATR says: "While noting this observation of the Commission, Government understand that any probe must eventually result in judicially admissible evidence." Yet the "foreign hand" will be "examined in depth" by the Ministries of External Affairs and Home, and the I.B. and the RAW, all of which have nothing better to do, apparently. The ATR accepts the stand of the CBI and the judgment of the Designated Court generally and specifically, on the 21 suspects except in regard to Kumaran Padmanathan and Subbulakshmi Jagadeesan, oddly enough. The MDMA will also target Karunanidhi on the basis of "serious observations" in the Interim Report although the Final Report declares that "there is no indictment in the Interim Report of any individual" (volume VI, p. 60). The MDMA will be an instrument of the Government.

The Bharatiya Janata Party has good reason to be happy with Jain. He brought down the United Front Government and has this to say of the Godse case: "There was a conspiracy theory in the assassination of Mahatma Gandhi. The RSS was banned and Savarkar was charged-sheeted and finally the political leaders were exonerated. The conspiracy as to who was responsible for the assassination of the Father of the Nation - not the particular Nathu Ram Godse who pulled the trigger - remains yet to be unveiled." He is wrong. The RSS was accused even by Sardar Vallabhbhai Patel - who would have liked it to join the Congress - of spreading "communal poison". On September 11, 1948, Patel wrote to RSS chief M. S. Golwalkar: "As a final result of the poison, the country had to suffer the sacrifice of the invaluable life of Gandhiji. Even an iota of the sympathy of the Government or of the people no more remained for the RSS. In fact, opposition grew. Opposition turned more severe when the RSS men expressed joy and distributed sweets after Gandhiji's death." Patel wrote to Hindu Mahasabha leader Shyama Prasad Mookerjee on July 18, 1948: "Our reports do confirm that, as a result of the activities of these two bodies (RSS and Hindu Mahasabha), particularly the former, an atmosphere was created in the country in which such a ghastly tragedy became possible..." Mahasabha president V. D. Savarkar was acquitted, despite the fact that the approver badge was found to be a reliable witness only because there was no independent corroboration of the approver's evidence as the law strictly required.