Holding

A sitting High Court judge may be appointed to a Commission of Inquiry only when the inquiry is of paramount national interest; here, that condition was not met.

Issues considered

Whether a sitting High Court judge can be appointed as head of a Commission of Inquiry under the Commission of Inquiry Act, 1952 when the matter is not of paramount national interest.
Whether the seriousness of a problem or the restriction of commission sittings to holidays suffices to justify such an appointment.

Legislation cited

Commission of Inquiry Act, 1952s. 3, s. 5(1), s. 5(2), s. 5(3), s. 5(4), s. 5(5)

Subjects

Commission of Inquirysitting judgeparamount national interestCommission of Inquiry Actjudicial independenceinterlocutory applicationpolice firing inquiry

Judgment

UNIVERSITY OF KERALA A
v.
COUNCIL, PRINCIPALS' COLLEGES, KERALA AND ORS.

APRIL 9, 2007

[DR. ARIJITPASAYAT AND D.K. JAIN, JJ.] B

y Commission of Inquiry Act, 1952:
1
s.3 r/w s.5(1)-Commission of Inquiry-Appointment of sitting Judge of
High Court-Direction of Supreme Court that no sitting Judge of any High C
Court would continue as a Commission-IA by State Government for
modification of the order-Held, considerations have to be of several aspects
including the determinative "paramount national interest" angle-On facts,
the issues being inquired into by the Commission have not been shown to
be of "paramount national interest" IA rejected-Judiciary-Sitting Judge D
of High Court-When can be appointed as Commission of Inquiry.

-( State of Orissa filed the present IA for modification of the order dated
27.11.1996 passed by the Supreme Court in Special Leave Petition (c) No.
24295 of2004, whereby the Court had directed that in no case a sittil!g Judge
of any High Court would continue as a Commission of Inquiry except where E
the inquiry was at the fag end. It was contended for the appellant-State that in
view of para 16(1) of the judgment in T. Fenn Walter's case1, appointment ofa
sitting Judge as Commission was possible.

Dismissing the application, the Court
F
HELD: 1.1. For appointment of a sitting Judge of a High Court as
Commission of Inquiry, the considerations have to be of several aspects
including the determinative "paramount national interest". It could not be
shown as to how the issues being enquired into by the Commission are of
paramount national interest. From a reading of the letters of the Chief
Minister and the Chief Justice it nowhere appears that either the State G
Government or the Chief Justice considered the matter to be of "paramount
national interest" to warrant appointment of a sitti11g Judge of a High Court
as Commission. All that has been stated by the Chief Minister and the Chief .
Justice is about the "seriousness of the problem". Even the notification dated
989 II
990 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 4th February, 2006 does not indicate it to be of paramount national interest
(Para 5 and 6) (944-C-D; 992-E] -<
T. Fenn Walter and Ors. v. Union ofIndia and Ors., (2002] Supp 1 SCR
134 200(6) sec 184, relied on.

B 1.2. Though the case of the applicant - State is that the Commission
was only permitted to work on holidays, that really is of no consequence. That
does not appear to be a factor considered when the request was made for
appointment of a sitting Judge as the commission and the reply of the Chief
Justice of the High Court accepting the prayer. Further, the stand that the -1·

Commission was required to give recommendation on various other aspects
C like industrialization de. is really of no consequence. It is not known as to
on what basis a sitting Judge appointed as a Commission, can throw light on
the broader issues like industrialization etc. In any event, the parameters of
enquiry do not include these aspects. (Para 7) (994-C-E]

CIVIL APPELLATE JURISDICTION: I.A. No. 6
D
IN

Special Leave Petition (Civil) No. 24295 of2004.

E From the Judgment and Order dated 24.06.04 of the High Court of Kerala
at Emakulam in W.P. (C.) No. 30845 of2003 (S).

R. Sathish, Dr. Sushi! Balwada and Pooja Dhar (for AP & J Chambers)
for the Appellant.

F Gopal Subramanium, ASG., Sushma Suri, Abhishek Tewari, E.M.S. Anam,
K.R. Sasiprabhu, M.K. Michael, M.K.D. Namboodiri, V.G. Pragasam, Shivaji M.
Jadhav, Khwairakpam Nobin Singh, Kadha Shyam Jena, T.V. George and Sunil ~-
Kumar Dwive&i"for the Respondents. ""

The Judgment of the Court was delivered by
G DR. ARIJIT PASAYAT, J. I. The State ofOrissa has filed this I.A. for
modification of the Order dated 27.11.2006. By the said order, thi.s Court h~d
directed that in no case a sitting Judge of any High Court shall continue as
a Commission. It was however made clear that the order shall not operate in
cases where the inquiry is at the fag end, i.e. only where the report is to be
H submitted.
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS' COLLEGES, KERALA [PASAYAT, J.] 991

2. In support of the application, learned counsel for the State submitted A
that a sitting Judge was appointed at the request of the State Government
considering the "serious problem" highlighted in the letter of the Chief Minister
addressed to the Chief Justice of the High Court. Though initially Chief
Justice of the High Court had not acceded to the request of the State
Government to appoint a sitting Judge as a Commission, purportedly
considering the "seriousness of the problem" he suggested name of a sitting B
Judge to act as a Commission. It was, however, stated that the Commission
shall hold sittings and enquiries only on Saturdays and Sundays and other
High Court's holidays without interference with the normal work of the High
Court. Accordingly, Justice A.S. Naidu was appointed as the Commission. It
was submitted that the Commission was expected to throw light on various C
aspects which would help the State Government to address to the larger
issues on industrialization, displacement and rights of citizens, in particular
tribals.

3. Mr. Gopal Subramanium, learned A.S.G. submitted that the State
Government's application is clearly not acceptable, it is thoroughly D
t misconceived. This Court in its order dated 27 .11.2006 clearly indicated as to
why sitting Judges should not act as Commission.

4. At this juncture it would be appropriate to take note of what has been
stated by this Court in T.Fenn Walter and Ors. v. Union of India and Ors.,
[2002] 6 SCC 184). Though learned counsel for the applicant - State submitted E
that in terms of paragraph 16(1) of the judgment, appointment of a sitting
Judge as Commission is permissible, it has to be noted that the same has to
be read along with paragraph 14 of the judgment. The said paragraph reads
as follows:

"Quite often sitting Judges are appointed as Inquiry Commissions.
F
Generally it may not create any difficulty, if the inquiry itself can be
conducted without prejudice to other judicial work as a judge of the
superior court. However, the appointment of Judges to head or chair
a Commission of Inquiry or to perform other non-judicial work would
create unnecessary burden on the Judges and it would affect the G
administration of justice. The work of these Commissions takes
considerable time and there are several instances where the work of
the Commission continued for years. If a sitting Judge is appointed,
considerable time is lost and the Judge would not be in a position to
attend to his regular judicial work. In view of the mounting arrears of H
992 .SUPREME COURT REPORTS - [2007) 4 S.C.R.

A cases in superior courts, it would be difficult to lend services of a
Judge for such commission work. Moreover, the report of the
Commission oflnquiry is often stated to have only recommendatory
value and the opinions expressed therein are not binding on the
Government. Quite often the reports of the Commission are ignored
and no follow-up actions are being taken by the Government. In some
B matters, when political issues are also involved, even impartiality and
objectivity of the Court may sometimes be questioned due to some
extraneous and oblique motives. The public image and prestige of the -r
Court as guardian of the Constitution and rule of law has to be
maintained. It is desirable that the Judges are not subjected to
c unwanted criticism on account of appointment as Inquiry Commission.
The image and the authority of the Court, which is of utmost
importance, has to be upheld. Justice Harlan F. Stone in a letter as far
back as in 1953 wrote: "It has been a long tradition of our Court that
its members do not serve on committees or perform other services not
having a direct relationship to the work of the Court." [Law Review
D (Vol. 87, 1953-54)] Keeping in view all these aspects, the appointment
of a sitting Judge as a Commission of Inquiry has to be made only '"<-
on rare occasions if it becomes necessary for the paramount national
interest of the country. "

(underlined for emphasis)
E
5. From a reading of the letters of the Chief Minister and the Chief
Justice it no where appears that either the State Government or the Chief
Justice considered the matter to be of"paramount national interest" to warrant
appointment of a sitting Judge of a Hi~h Court as Commission. All that has
F been stated by the Chief Minister and the Chief Justice is about the "seriousness
of the problem". -....

6. Even the notification dated 4th February, 2006 does not indicate it to
be of paramount national interest. It only states as follows:

"The Orissa Gazette
G
Extraordinary
Published by Authority
No. 127, Cuttack, Thursday, February 9, 2006/Magha 20, 1927
HOME (SPECIAL SECTION) DEPARTMENT
H
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS' COLLEGES, KERALA [PASAYAT, J.) 993

NOTIFICATION A
The 4th February 2006
S.R. No. 20/2006-Whereas it has been reported to the State
Government that there had been a police firing on the 2nd January
2006 at Kalinga Nagar, Jajpur district, leading to the death of 12
persons. One Police Hawaldar had also died otherwise. B
2. And whereas the State Government are deeply concerned about the
incident of firing and are of the opinion that, this being a matter of
public importance, should be inquired into by a Commission of Inquiry
under the Commission of Inquiry, Act, 1952.

3. Now therefore, in exercise of the powers conferred by section 3 read
c
with sub-section (1) of section 5 of the said Act, the State Government
do hereby appoint a Commission of Inquiry consisting of Hon 'ble Shri
Justice A. Suryanarayan Naidu, a sitting Judge of Orissa High Court,
to inquire into and report in respect of the following matters, within
six months from the date of publication of this notification in the D
Orissa Gazette, namely :-

(i) Analysis of the Sequence of events and circumstances leading
to the police firing at Kalinga Nagar on the 2nd January 2006.
(it) Whether the measures taken, the quantum of force used in E
anticipating, preventing and handling situations were adequate,
inadequate or in excess of requirement and the responsibility for
such acts of commission or omission.

(iii) The role, conduct and responsibility of the organizations, group
of individuals or reasons if any, in influencing, precipitating or F
escalating the incident; and

(iv) Any other matter connected with or incidental thereto as the
Commission may consider appropriate.

4. Further, the State Government are of the opinion that having regard
to the nature of inquiry to be made and the other circumstances G
pertaining to the incident, it would be appropriate that the provisions
of sub-sections (2), (3), (4) & (5) of Section 5 of the said Act should
apply to the conduct of this inquiry, by the Commission. Therefore,
the State Government directs that the aforesaid provisions shall apply,
accordingly. H
_,..___
I

994 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 5. The headquarters of the Commission shall be at Cuttack. However
the Commission may hold the inquiry in Kalinga Nagar or any other
place also as may be considered necessary by them for the purpose.

(No. 632/C)

B By order of the Governor

SANTOSH KUMAR

Principal Secretary to Government"

C 7. Though it was strenuously urged by the learned counsel for the
applicant - State that the Commission was only permitted to work on holidays
that really is of no consequence. As noted in T. Fenn Walter's case (supra)
the considerations have to be of several aspects including the determinative
"paramount national interest" angle. That does not appear to be a factor
considered when the request was made for appointment of a sitting Judge as
D the commission and the reply of the Chief Justice of the High Court accepting·· .:
the prayer. It could not be shown to us as to how the issues being enquired
into by the Commission are of paramount national interest. Further the stand
that the Commission was required to give recommendation ·on various other
aspects like ~ndustrialization etc. is really of no consequence. It is not known
E as to on what basis a sitting Judge appointed as a Commission, can throw .
light on the broader issues like industrialization etc. In any event, the parameters
of enquiry do not include these aspects.

8. The I.A. is sans merit, deserves dismissal, which we direct.

RP. , I.A. dismissed.