M.L. Pendse, Acting C.J.
Rule. Returnable forthwith. Mr. C.J. Sawant, Advocate General for respondent No. 1 and Mr. Rana for respondent No. 2 waive service. By consent, petition taken on board and called out for hearing. Heard Counsel.
On January 25, 1993 Government of Maharashtra exercised powers conferred by section 3 and section 5 of the Commissions of Inquiry Act, 1952 and appointed Commission of Inquiry of Mr. Justice B.N. Srikrishna, a sitting Judge of this Court to inquire into and make report on-
(a) the circumstances, events and the immediate causes of the incidents which occured in the Bombay Police Commissionerate area in December, 1992 on or after the 6th December, 1992 and again in January, 1993, on or after the 6th January, 1993;
(b) whether any individual or group of individuals or any other organisation, were responsible for such events and circumstances;
(c) the adequacy or otherwise of the precautionary and preventive measures, taken by the Police preceding the aforesaid incidents;
(d) whether the steps taken by the Police in controlling the riots were adequate and proper and whether the Police firing resulting in deaths was justified or not;
(e) the measures, long and short term, which are required to be taken by the administration to avoid recurrence of such incidents, to secure communal harmony and also to suggest improvements in law and order machinery.
1. The Commission was appointed following demolition of Babri Masjid in Ayodhya on December 6, 1992 and wide spread riots which then rocked the Metropolis. The riots led to injuries to persons and damage to properties.
2. Justice Srikrishna Commission commenced work in July 1993 and affidavits were called from the public. The Commission recorded statements of about 400 witnesses and statements of Police Officers posted at the Police Stations within whose jurisdiction the riot had taken place. During the hearing before the Commission some Parties claimed that the Commission should also investigate the circumstances and the events which, led to Bomb Blasts which rocked the Metropolis on March 12, 1993. The Commission naturally did not permit the parties to go into that aspect in absence of specific terms of reference.
3. The election to the State Legislative Assembly was held in March, 1995 and the Congress Government which was in Office lost the power and the Government was formed by Bharatiya Janata Party and Shiv Sena combine.
On May 24, 1994, the Government in exercise of powers conferred by sections 3 and section 5 of the Commissions of Inquiry Act, 1952 amended terms of reference and added more terms which reads as under :
'the circumstances and the immediate cause of the incidents commonly known as the serial Bomb Blasts of the 12th March, 1993 which occured in the Bombay Police Commissionerate area;whether the incidents referred to in term(vi) (i.e. Bomb Blasts have any common link with the incidents referred to in term (i) of the original reference and whether the incidents referred to in term (i) and term (vi) i.e. riots and Bomb Blasts were part of a common design'.
The Notification sets out proviso, which reads as under :
'Provided that the scope of inquiry by the Commission shall not include the matters relating to the investigation and trial of serial Bomb Blasts cases pending before the TADA Designated Court, Arthur Road Jail premises, Greater Bombay'.
4. The petitioner who has participated in several political and social movements in Maharashtra and who has deposed before Justice Srikishna Commission has preferred this petition under Article 226 of the Constitution to challenge the issuance of Notification amending terms of reference on various grounds. Mrs. Bhagwat, learned Counsel appearing on behalf of the petitioner submitted that the Government of Maharashtra was not an appropriate Government to issue Notification. Learned Counsel further submitted that the Notification suffers from vice of non-application of mind and power is not exercised bona fide. It was also contended that the power has been exercised mala fide and the object of issuance of Notification was to disrupt the work of the Commission in operation for last over two years as well as to create impediments in the smooth trial of the criminal case involving large number of accused in respect of serial Bomb Blasts. The learned Advocate General appearing on behalf of the State Government controverted the submission while the counsel for Commission submitted to the order of Court.
5. The first contention of the learned Counsel in support of the petition is that the Government of Maharashtra is not an appropriate Government to issue Notification for making an inquiry into causes leading to serial Bomb Blasts. The learned Counsel submitted that the powers of the State Government are regulated by the provisions of section 3 of the Commissions of Inquiry Act and the perusal of the same would indicate that the State Government was not an appropriate Government to issue the impugned Notification. Sub-section (1) of section 3 inter alia provides that the appropriate Government may appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. The expression 'appropriate Government' is defined under section 2(a) and in relation to the State Government it prescribes that the State Government may appoint a Commission to make an inquiry into any matter related to any of the entries enumerated in List II or List III in the Seventh Schedule of the Constitution. The Central Government can appoint a Commission relating to any of the entries enumerated in List I or List II or List III in the Seventh Schedule of the Constitution. Mrs. Bhagwat submitted that the matter relating to serial Bomb Blasts would fall in Entries 5, 8, 15, 21 and 94 of List I. The submission was advanced by urging that the Bomb Blasts was a result of the Crimes Committed in foreign countries by importing R.D.X. and arms and which was with an object of waging war against the Government of India. It was submitted that the matter relating to serial Bomb Blasts, falls within the abovementioned entries in List I and consequently the appropriate Government to appoint a Commission to make an inquiry in respect of circumstances leading to Bomb Blasts can only be Central Government. Mr. Advocate General on the other hand submitted that the subject of Bomb Blasts relates to 'public order' and which is a subject referred to in Entry 1 in List II. It was further submitted that the Entries 1 and 2 in List III which is a concurrent List deals with Criminal Law, including all matters included in the Indian Penal Code and Criminal Procedure and matters relating to serial Bomb Blasts can well fall in these entries. Reference was also made to Entry No. 45 in List III which covers the subject of inquiries and statistics for the purposes of any of the matters specified in List II or List III. We find considerable merit in the submission urged by the learned Advocate General. It is undoubtedly true that Bomb Blasts are claimed to be result of wide spread conspiracy which has its roots not only in this country but also in foreign countries. It is undoubtedly true that realising the seriousness of the conspiracy, the Government of India directed C.B.I. to takeover the investigation and prosecution before the TADA Court. The charge-sheet filed before the TADA Authorities is not before us and we do not wish to express any opinion as regards the charges levelled against the accused and whether the charge of waging war against the Government of India is sustainable or otherwise. The issue to be determined in the present proceedings is whether the Notification issued by the State Government covers the subject which falls in Entry 1 of List II. The expression 'public order' has a wide connotation and it cannot be seriously debated that as a result of serial Bomb Blasts at various places in city of Bombay the public order was seriously disturbed. The Bomb Blasts coming immediately in the wake of riots gave an impression that Bomb Blasts was the consequence of the earlier riots. The State Government by impugned Notification desires an inquiry to be made in the circumstances and the immediate cause of the Bomb Blasts and whether Bomb Blasts have any link with the riots in the City. It is difficult to accept the contention that such inquiry would not come within the expression 'public order'.
6. Mrs. Bhagwat referred to the decision of Mr. Justice Sabyasachi Mukharji, as he then was, of the Calcutta High Court in the case of Motahar Hossain v. H. Chakrabarty, reported in 84 Calcutta Weekly Notes, page 560. In the case before the learned Judge, the Government of West Bengal appointed a Commission of Inquiry after appointment of Shah Commission by the Central Government to inquire into the excesses during the period of emergency declared in year 1975. The terms of reference of the Commission appointed by West Bengal Government were to ascertain the facts and circumstances relating to specific instances of serious nature relatable to any of the terms of reference of the Shah Commission of Inquiry. The terms of reference required the Commission to inquiry into such complaints or allegations as may be referred to the Authority or the State Government by Shah Commission. The learned Judge held that though the State Government could constitute another Commission in respect of matters of definite importance, such matters must be relatable to either List II or III of the Seventh Schedule of the Constitution. It was further held that if there is a pre-existing Commission appointed by the Central Government then the State Government cannot constitute another Commission to cover the same matter. There cannot be any debate about the accuracy of the principle laid down by the learned Judge. But the question in the present case is whether the subject of serial Bomb Blasts is one which is exclusively within the entries in List I and excludes the Government of Maharashtra from exercising powers. In our judgment, the contention that in respect of serial Bomb Blasts the Commission of Inquiry could be appointed only by Central Government cannot be accepted. The entry relating to 'public order' squarely covers the authority of the State Government within whose jurisdiction blasts took place, to appoint Inquiry Commission. The first contention of the learned Counsel is, therefore, required to be turned down.
7. Mrs. Bhagwat then submitted that the impugned Notification suffers from vice of non-application of mind and in any event powers are not exercised bonafide. The learned Counsel urged that Justice Srikrishna Commission was set up by Notification dated January 25, 1993 to inquire into the events leading to the riots in the city and at that time the Government of Maharashtra was under the control of Congress Ministry. It was urged that the then Government did not think it necessary to make an inquiry into the causes that led to Bomb Blasts or whether there is any common link between the riots and the Bomb Blasts. Mrs. Bhagwat submitted that the Government formed by Bharatiya Janata Party and Shiv Sena assumed power in March 1995 and thereafter the impugned Notification was published on May 24, 1995. It was urged that the action of the State Government in amending terms of reference is malafide and the object is only to disrupt work of the Commission which is in progress for last over two years as well as to create impediments in the smooth functioning of the criminal trial pending before the TADA Court. Mr. Advocate-General on the other hand submitted that some parties appearing before the Commission were insisting right from the inception that there is a common link between the riots and the Bomb Blasts and Commission should undertake the inquiry into causes leading to Bomb Blasts. Mr. Advocate-General urged that the then Government was not willing to accede to the request but only after the change in Government it was felt that it is necessary to amend terms of reference in view of the fact that there is a grave suspicion in the minds of the citizens that there is a close link between the riots and the Bomb Blasts. Mr. Advocate-General submitted that it is necessary for State Government to find out whether the fear in the mind of people is genuine or otherwise and that is the reason for amending terms of reference.
Before considering whether exercise of powers is bonafide or otherwise, it would be appropriate to refer to decision of the Supreme Court in the case of State of Karnataka v. Union of India and another, reported in : [1978]2SCR1 . In the case before the Supreme Court, the Central Government had appointed Commission of Inquiry against the Chief Minister of Karnataka and the State of Karnataka filed a suit in the Supreme Court for a declaration that the appointment of the Commission was illegal. Chief Justice Beg in paragraph 28 of the judgment referred with approval to what Sir Cyril Salmon, Lord Justice of appeal had said in a lecture on 'Tribunals of Inquiry'.
'In all countries, certainly in those which enjoy freedom of speech and a free press, moments occur when allegations and rumours circulate causing a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does, it is essential that public confidence should be restored, for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be rooted out, or that there is no foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is restored.
Mr. Justice Chandrachud, as he then was, in the concurring judgment observed in paragraph 184 that there are sensitive matters of public importance which, if left to the normal investigational agencies, can create needless controversies and generate an atmosphere of suspicion. The learned Judge observed that the larger interest of the community require that such matters should be inquired into by high-powers Commissions consisting of persons whose findings can command the confidence of the people. The learned Judge also relied upon passage cited hereinabove from the lecture of Sir Cyril Salmon. From the perusal of decision of the Supreme Court, it is clear that to restore the confidence of the people it is necessary to investigate and probe the rumours and allegations and to establish truth. In case, the State Government which is elected in a democratic set up on the support of the citizens desires that the confidence of the people can be restored by investigating allegations about a common link between the riots and the Bomb Blasts, then the action cannot be faulted on the ground that the previous Government did not think it necessary. It is undoubtedly true that the Commission is in operation for last about two years and statements of large number of witnesses are recorded, but that itself is not sufficient to warrant a conclusion that the object of the impugned notification was to disrupt the work of the Commission and to postpone the report in respect of facts leading to the riots. Mrs. Bhagwat submitted that what has transpired before the Commission prima facie indicates that the large number of persons connected with ruling parties were responsible for the riots. We do not wish to express any opinion on the submission of the counsel as the issue is within the exclusive jurisdiction of the Commission. It was further submitted that the State Government is not keen that the trial of the accused charged with Bomb Blasts and the conspiracy thereof should proceed and that is the reason why the impugned Notification is published. There is nothing on record to warrant such a conclusion. The trial of offenders before the TADA Court is not dependent upon the inquiry to be undertaken by the Commission. The charge of malafide exercise of powers cannot be sustained on the strength of circumstances relied.
8. As faint attempt was made to urge that the impugned Notification was issued in respect of events which had happened subsequent to the riots and was not in contemplation when the Commission of Inquiry was set up by Notification dated January 25, 1993 and therefore invalid. Reference was made to the decision of the Supreme Court in the case of The State of Jammu and Kashmir and others v. Bakshi Gulam Mohammad and another, reported in : AIR1967SC122 where it was observed that what is to be inquired into by the Commission are necessarily past acts and it is because they have already affected the public well-being or their effect might do so. It is not in dispute that the Bomb Blasts rocked the City in March, 1993 and the terms of reference by impugned Notification are obviously subsequent to that event. It was contended by Mrs. Bhagwat that it was open for the State Government to appoint an independent Commission of Inquiry to inquire into Bomb Blasts and it was not necessary to amend the terms of reference of the Commission appointed to inquire into riots. We are unable to find any merit in the contention. The impugned Notification requires the Commission to examine whether there is any common link with the incidents leading to riots and leading to Bomb Blasts. The terms of reference are therefore interconnected and it is futile to expect setting up of another Commission, which would require couple of years more to conclude and would be considerable financial burden on the State Exchequer. In our judgment, challenge to the Notification cannot be accepted, on this count.
9. It was also contended by Mrs. Bhagwat that the Commission had jurisdiction to decide whether the impugned Notification was legal or otherwise and observation of the Commission that there is no power to declare the Notification issued by the State Government to be invalid on any ground, is incorrect. We are not examining this aspect as we have found on consideration of submissions of the learned Counsel that the Notification does not suffer from any infirmity. The learned Counsel submitted that the proviso to terms of reference, and which is set out hereinabove, would cause numerous problems in working of the Commission. Mr. Advocate-General pointed out that the Commission was assured that there would be no difficulty in carrying out the work in relation to the terms of reference and if any difficulty arises, the Advocate-General would advise the State Government to issue an appropriate amending Notification to get over the difficulty. The Commission is presided over by a sitting High Court Judge and it is always open for the Commission to determine the procedure to be followed and answer the terms of reference. It is not necessary to express any opinion on the apprehension of the learned Counsel for the petitioner, about the difficulties that may arise. In our judgment, the petitioner is not entitled to any relief and the petition must fail.
10. Accordingly, Rule is discharged with no order as to costs.