STATE OF BIHARversusLAL KRISHNA ADVANI AND ORS.

A                             STA TE OF BIHAR
                                        V.

                     LAL KRISHNA ADVANI AND ORS.

                             SEPTEMBER 16, 2003
B               [BRIJESH KUMAR AND ARUN KUMAR, JJ.]

       Commission of Inquiry Act, 1952-Section BB-Persons likely to be
  prejudicially affected to be heard-Enquiry Report containing impinging
  remarks on respondent affecting his reputation and image-High Court,
C in Writ Petition by respondent, ordering deletion of such remarks since it
  was made without following principles of natural justice-Right to be
  heard-Availability of-Held, one is entitled to have one's reputation and
  a right to protect it-Hence, impinging remarks made on respondent
  without following principles of natural justice is violative of Section 8B of
D the Act and law.
       The appellant State appointed a Commission of Enquiry under
  Section 3 of the Commission of Inquiry Act, 1952 for inquiry into the
  Bhagalpur communal riots of 1989. The Commission was initially a
  Single Member Commission but later on in 1993, two others were also
E notified as Members of the Commission. The members of the
  Commission were retired High Court Judges. The Commission gave
  two Reports-one by one member and the other by two other members.

        Respondent no. 1 filed a Writ Petition before High Court for
p expunging certain remarks made in the Report submitted by two
  members contending that the remarks were made against him without
  issuing a notice under Section SB of the Act and thereby violating the
  principles of natural justice; that the remarks are such which impinge
  upon his reputation as a public man; and that his reputation and image
  was adversely affected in the eyes of the people. High Court, without
G going into the recommendations of the Report, partly allowed the writ
  petition of respondent no. 1 ordering such parts of the report, which
  consists of the impinging remarks on respondent no. I, to be inoperative
  and no action be taken on the basis thereof.

H        In appeal to this Court, the appellant-State contended that the
                                       844
                        STA TE v. L.K. ADVANI                       845

Writ petition of respondent no. 1 before the High Court was premature A
since no action was taken by the State against the respondent in
pursuance of the report of the Enquiry Commission; that the terms of
the Reference of the Commission were quite wide which included
looking into the causes behind the riots and recommending preventive
measures; and that the Commission was not inquiring into the conduct B
of respondent no.I in particular.

     Dismissing the appeals, the Court

     HELD : 1.1. One is entitled to have and preserve one's reputation
and one also has a right to protect it. In case any authority,. in C
discharge of its duties fastened upon it under the law, traverses into
the realm of personal reputation adversely affecting him, must provide
a chance to him to have his say in the matter. In such circumstances,
the right of an individual to have the safeguard of the principles of
natural justice before being adversely commented upon by a Commission D
of Inquiry is statutorily recognised and violation of the same will have
to bear the scrutiny of judicial review. One cannot be condemned
unheard is one of the attributes of the principles of natural justice,
which operates even in the absence of a written provision under the
law. [852-E-F, 847-C)
                                                                          E
      The State ofJammu and Kashmir & Ors. v. Bakshi Gu/am Mohammad
& Anr., AIR (1967) SC 122; Smt. Kiran Bedi & Jinder Singh v. Committee
of Inquiry & Anr., AIR (1989) SC 714 and Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors., [1983) 1
sec 124, referred to.                                                     F
    D.F. Marion v. Minnie Davis, [55 America.n LR 171) and Peter
Thomas Mohan v. Air New Zealand Ltd. & Ors., (1984) A.C. 808, referred
to.

     International Convenant on Civil and Political Rights, (1965) ICCPR, G
referred to.

     1.2. Section 88 was brought into the Commission of Enquiry Act,
1952 by Amending Act 79of1971 i.e. about 20 years after passing the
main Act itself. The experience during the past two decades must have H
    846                  SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A made the Legislature to realise that it would be necessary to notice a
  person whose conduct the Commission considers necessary to inquire
  into during the course of the inquiry or whose reputation is likely to
  be prejudicially affected by the inquiry. It is further provided that such
  a person would have a reasonable opportunity of being heard and to
B adduce evidence in his defence. Thus the principle of natural justice
  was got inducted in the shape of statutory provision. It is thus
  incumbent upon the Commission to give an opportunity to a person,
  before any comment is made or opinion is expressed which is likely to
  prejudicially affect that person. Failure to comply with principles of
C natural justice renders the action non-est as well as the consequences
  thereof. [852-G-H, 853-A-BJ

          1.3. It is not necessary for a person to wait till certain action is
    initiated by the Government considering the report of the Inquiry
    Commission where the observations made by the Commission are such
D   which militate against the reputation of a person and particularly
    without giving any chance to such a person to explain his conduct. It
    would be open for him to move the Court for deletion of such remarks
    made against him violating the provisions of Section 88 of the Act. The
    State actually takes action or it does not or the fact that the Report
E   is yet to be considered from that angle, cannot be a reason to submit
    that it won't be an appropriate stage to approach the Court. There
    may be occasions where after consideration of the Report, the
    Government may not decide to take any action against the person
    concerned yet the observation and remarks may be such which may
    play upon the reputation of the person concerned and this aspect of
F   the matter has been fully taken care of under clause (b) of Section 88
    of the Act. It is not, therefore, necessary that one must wait till a
    decision is taken by the Government to take action against the person
    after consideration of the Report. [853-D-E, 854-F-H, 855-A)

G        State ofKarnataka v. Union of India & Anr., [1977) 4 SCC 608 CB;
    Brijnandan Sinha v. Jyoti Narain, AIR (1956) SC 66 and Shri Ram
    Krishna Dalmia v. Shri Justice S.R. Tendo/kar & Ors., [1959) SCR 279
    CB, referred to.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1792 of
H   1997.
           STATE v. L.K. ADVANI [BRIJESH KUMAR, J.]                    847

     From the Judgment and Order dated 10.5.96 of the Patna High Court A
in C.W.J.C. No. 5790 of 1995.

    Dinesh Dwivedi, Kumar Rajesh Singh and B.B. Singh for the
Appellant.

     Harish N. Salve, Mrs. Vanita Bhargava, Ms. Bina Gupta and Mrs. B
Sree Deve Raja for the Respondents.

     The Judgment of the Court was delivered by

     BRIJESH KUMAR, J. : In this appeal, preferred by the State of
Bihar, ultimately the question which falls for consideration is the effect of C
non-compliance of all time tested and ancient principle of natural justice.
One cannot be condemned unheard is one of the attributes of the principles
of natural justice, which operates even in absence of a written provision
under the Jaw. Though ir. the case in hand there is such a provision which,
according to the appellant, was not necessary to be complied with, but the D
High Court of Patna has held to the contrary. It relates to applicability of
Section SB of the Commissions oflnquiry Act, 1952 (60of1952) (for short
'the Act').

      In the year 1989 some communal riots took place in Bhagalpur
District, State of Bihar, resulting in many deaths and left some others E
injured. Undoubtedly, it was a matter of concern and the State Government
decided to constitute a Commission of Inquiry under Section 3 of the Act,
which reads as under :

         "3. Appointment ofCommission.- ( 1) The appropriate Government, p
         may, if it is of opinion that it is necessary so to do, and shall, if
         a resolution in this behalf is passed by [each House of Parliament
         or, as the case may be, the Legislature of the State], by notification
         in the Official Gazette, appoint a Commission of Inquiry for the
         purpose of making an inquiry into any definite matter of public G
         importance and performing such functions and within such time
         as may be specified in the notification, and the Commission so
         appointed shall make the Inquiry and perform the functions
         accordingly:

         xxx            xxx                xxx                               H
    848                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A            (2) The Commission may consist of one or more members
             appointed by the appropriate Government, and where the
             Commission consists of more than one member, one of them may
             be appointed as the Chairman thereof.


B            xxx            xxx                 xxx

            • (4) The appropriate Government shall cause to be laid before
              [each House of Parliament or, as the case may be, the Legislature
              of the State,] the Report if any, of the Commission on the inquiry

c             made by the Commission under sub-section (!)together with a
              memorandum of the action taken thereon, within a period of six
              months of the submission of the Report by the Commission to the
              appropriate Government.]"

          The terms of the Reference are as follows :
D
             "a) to enquire into the facts and circumstances leading to
             communal disturbances in the district of Bhagalpur and adjacent
             areas on 24th October, 1989 and thereafter;

E            b) to enquire into whether these disturbances were pre-planned
             and, if so, the elements responsible for the same;

             c) to enquire whether measures taken by the District
             Administration to prevent and deal with the said disturbances
F            were timely and adequate, and to fix responsibility for lapses if
             any, in this regard with the said disturbances were timely and
             adequate, and to fix responsibilities for lapses if any, in this
             regard;

G            d) to recommend measures for preventing recurrence of such
             disturbances;

             e) to consider such other matter relating to these communal
             disturbances and make such recommendations as the Commission
H            may think it proper and necessary."
           STATE v. L.K. ADVANI [8RIJESH KUMAR, J.]                 849

      It was initially a single Member Commission and Mr. Justice Ram A
Nandan Prasad was appointed as a sole Member of the Commission.
Subsequently, however, on 20.09.1993 two others were also notified as
Members of the Commission, namely, Mr. Justice Ram Chandra Prasad
Sinha and Mr. Justice S. Shansul Hasan. They are also retired Judges of
the High Court. The Commission seems to have been divided in its B
opinion; one report was handed down by Justice Ram Nandan Prasad and
the second by the other two members, namely, Mr. Justice Ram Chandra
Prasad Sinha and Mr. Justice S. Shansul Hasan. The respondent no. 1 Shri
Lal Krishna Advani and some others felt aggrieved by certain parts of the
Report submitted by the two members of the Commission. In this appeal
we are concerned with the remarks relating to the respondent no. I alone. C
The respondent no. I felt that such remarks made in the Report submitted
by the two members of the Commission were uncalled for and were not
necessary to be made looking to the terms of the Reference and in any case
the remarks are such which impinge upon his reputation, as a public man.
According to him, his reputation and image was adversely affected in the D
eyes of the people and such parts of the report were liable to be expunged,
and the appellant was required to be directed not to take any action in
pursuance of such observations against him, in the Report, more so, when
the respondent no. I was not issued notice under Section 88 of the Act.
If the notice had been given it might have provided an opportunity to the E
respondent no. 1 to dispel whatever misconceptions were entertained and
the findings recorded in the Report. It would be appropriate to peruse the
provision as contained under Section 88 of the Act :

        "BB. Persons likely to be prejudicially affected to be heard.- If,
        at any stage of the inquiry, the Commission,-                      F
        (a)   considers it .necessary to inquire into the conduct of any
              persons or

        (b)   is of opinion that the reputation of any person is likely to G
              be prejudicially affected by the inquiry, the Commission
              shall give to that person a reasonable opportunity of being
              heard in the inquiry and to produce evidence in his defence:

                    Provided that nothing in this section shall apply
              where the credit of a witness is being impeached."      H
    850                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A One of the paragraphs of the Report in which a reference to Mr.Advani
    has been made as also quoted in the judgment of the High Court, reads
    as follows :

             "..... Thus Jansangh disappeared and became a part of the Janta
             Party. Along with people like ...... Mr. Advani became Information
B            and Broadcasting Minister and Vajpaee the Minister of External
             Affairs, while invidiously Mr. Advani spreading the message of
             his cult through the official media .... "

          Paragraph 63 is also quoted, which reads as under :
c
             "..... Mr. Advani really spilled the beans and revealed the real
             intention of the BJP in his statement Reported in the
             PANCHAJANYA and copied by the 'Times of India' dated
             January 30th, 1993" ..... "Speaking for ourself, were distressed to
D            read that statement not out offear because our life and our religion
             are both safe in this country but because of an eminent national
             leader should resort to threat of rioting unless the norms set by
             him are followed .... ".

          Yet another part of the Report in paragraph 625 reads as under :
E
             " ...... The demand by him that Muslim and Christian should style
             themselves as Mohammadi Hindu and Christian Hindu etc. is a
             proof of this depraved an achronistion ideology ...." (v) " .... One
             became the protector oflslam by peddling the slogan of"ISLAM
F            IN DANGER" the other is exactly doing the same thing by
             peddling the concept of protecting the Hindu .... "(vi)

          In the same part of the Report paragraph 626 reads as under :

             " ..... The Islam which Mr. Jinna and the Muslim League tried to
G            save led to the chaotic condition in Pakistan. Hinduism or Sanatan
             Dharma which Mr. Advani is trying to save is creating the same
             chaotic condition in India ....."

    The case of the respondent no. I has been that such findings and
H   observations as recorded by the two member Report of the Inquiry
            STATE v. L.K. ADVANI [BRIJESH KUMAR, J.]                    851
Commission objectionably painted him in the minds of the people affecting A
his reputation and bringing down his image in the public.

      The High Court, in our view, has been rightly cautious in observing
that it was not concerned about the merit on the question of appointment
or the recommendations of the Commission but it confined its inquiry to B
the parts of the Report which, according to the respondent no. I, were
objectionable and it was necessary that he was allowed an opportunity
before making any comment on his alleged conduct. The High Court, after
elaborate discussion on the point involved, partly allowed the writ petition,
ordering that such parts of the report shall be inoperative and no action can C
be taken on the basis thereof.

     The High Court, while referring to a decision Reported in AIR ( 1967)
SC p. 122, The State of Jammu and Kashmir & Ors. v. Bakshi Gu/am
Mohammad & Anr., observed that an authority who takes a decision, which
may have civil consequences and affects right of a person, the principle D
of natural justice would at once come into play. Reputation of an
individual is an important part of one's life. The High Court then quoted
a passage from a decision of this Court reported in AIR (1989) SC p. 714
Smt. Kiran Bedi and Jinder Singh v. Committee of Inquiry & Anr.,
which passage contains the observations from an American decision in E
D.F. Marion v. Minnie Davis, 55 American LR 171, reads as follows :

         "The right to enjoyment of a private reputation, unassailed by
         malicious slander is of ancient origin, and is necessary to human
         society. A good reputation is an element of personal security and F
         is protected by the Constitution equally with the right to the
         enjoyment of life, liberty and property."

Some decisions, to which our attention has been drawn by Shri Harish N.
Salve, learned senior counsel appearing for the respondent no. I, may be
referred. [ 1983] 1 sec p. 124, Board of Trustees of the Port of Bombay G
v. Dilip Kumar Raghavendranath Nadkarni & Ors.. wherein ·it was
observed that right to reputation is a facet of right to life of a citizen under
Article 21 of the Constitution. He has also referred to the International
Covenant on Civil and Political Rights, 1965 (ICCPR);recognizing right
to have opinions and the right of freedom of expression subject to the right H
    852                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A of reputation of others. The Covenant provides :
             "I. Everyone shall have the right to hold opinions without
             interference.

             2. Everyone shall have the right to freedom of expression; this
B            right shall include freedom to seek, receive and impart information
             and ideas of all kinds, regardless of frontiers, either orally, in
             writing or in print, in the form of art, or through any other media
             of his choice.

c            3. The exercise of the rights provided for in paragraph 2 of this
             article carries with it special duties and responsibilities. It may
             therefore be subject to certain restrictions, but these shall only be
             such as are provided by law and are necessary;

D            (a)   For respect of the rights or reputations of others;

             (b)   For the protection of national security or of public order
                   (ordre public), or of public health or morals."

    It is thus amply clear that one is entitled to have and preserve, one's
E   reputation and one also has a right to protect it. In case any authority, in
    discharge of its duties fastened upon it under the law, traverses into the
    realm of personal reputation adversely affecting him, must provide a
    chance to him to have his say in the matter. In such circumstances right
    of an individual to have the safeguard of principles of natural justice before
F   being adversely commented upon by a Commission oflnquiry is statutorily
    recognised and violation of the same will have to bear the scrutiny of
    judicial review. A reference may be made to [1984] A.C. 808, Peter
    Thomas Mahon v. Air New Zealand Ltd & Ors.

           The provision as contained under Section SB of the Act quoted
G above, was brought into the statute book by Amending Act 79 of 1971.
           It may be noticed that the amendment was brought about, about 20
    years after passing of the main Act itself. The experience during past two
    decades must have made the Legislature to realize that it would but be
H   necessary to notice a person whose conduct the Commission considers it
            STATE v. L.K. ADVANI [BRIJESH KUMAR, J.]                   853

necessary to inquire into during the course of the inquiry or whose A
reputation is likely to be prejudicially affected by the inquiry. It is further
provided that such a person would have a reasonable opportunity of being
heard and to adduce evidence in his defence. Thus the principle of natural
justice was got inducted in the shape of statutory provision. It is thus
incumbent upon the Commission to give an opportunity to a person, before B
any comment is made or opinion is expressed which is likely to prejudicially
affect that person. Needless to emphasise that failure to comply with
principles of natural justice renders the action non-est as well as the
consequences thereof.

        Shri Dinesh Dwivedi, learned counsel appearing for the appellant C
submits that since ilo action has been taken against the respondent no. I so
far, in pursuance of the report of the Inquiry Commission there was no
occasion for him to move the Court in the matter. It was not the appropriate
stage to raise any grievance by filing a petition challenging certain
observations made by the Commission of Inquiry. The petition was thus D
premature. We feel that it may not be necessary for a person to wait till
certain action is initiated by the Government considering the report of the
Inquiry Commission where the observations made by the Commission are
such which militate against the reputation of a person and particularly
without giving any chance to such a person to explain his conduct. It would E
be open for him to move the Court for deletion of such remarks made
against him violating the provisions of Section 88 of the Act.

      It is then submitted by Shri Dwivedi that the Commission was
appointed to inquire as to whether the riots "were pre-planned and,. if so,
the elements responsible for the same''. The Commission was also required F
to recommend measures for preventing such recurrences. Therefore, the
terms of the Reference were quite wide and the anxiety of the Government
was only to identify the elements behind such disturbances and to take
sufficient measure to prevent recurrence in future. The Commission was
not inquiring into the conduct of the respondent no. I in particular. These G
were some general observations touching the matter under reference to the
Commission. In this connection, relying upon a decision reported in
1977(4) SCC p. 608, State of Karnataka v. Union ofIndia & Anr., a seven
Judge bench judgment, referred to the observations made in paragraph 77
to say that the scope of such inquiries is wide enough to cover anything H
    854                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A reasonably related to the matter under inquiry. It is further submitted in
    reference to observations made in paragraphs 184 and 186 of the aforesaid
    decision that the function of the Commission is purely fact-finding and
    its pronouncement is neither binding nor a definitive judgment. The
    Commission is required to submit its report, which may or may not be
B   accepted by the appointing authority. It is further submitted that the stage
    for any grievance arrives when in consideration of the report the authority
    decides to take any action not otherwise. The Commission has no power
    of adjudication in the sense of passing an order which can be enforced.
    A reference has also been made to a case reported in AIR (I 956) SC page
C   66, Brijnandan Sinha v. Jyoti Narain, a Division Bench Judgment, to
    indicate that report made by the Commissioner under the Public Servants
    (Inquiries) Act (37of1850) is merely expression of his opinion and it lacks
    both finality and authoritativeness. Learned Counsel has then referred to
    [1959] SCR page 279, Shri Ram Krishna Dalmia v. Shri Justice S.R.
    Tendolkar & Ors., a Constitution Bench Judgment, to submit that the
D   recommendations of Commission of Inquiry are not enforceable proprio
    vigore. It is not an adjudication. It is merely a recommendation of the
    Commission. On the basis of the decisions referred to above, much stress
    has been given on the point that this was not the stage for respondent no. I
    to have approached the Court raising any grievance in respect of some
E   observations made here and there while inquiring into the Bhagalpur
    communal riots, its reasons and to recommend measures to check such
    recurrences in future.

          We have already observed that had it been only a question of any
F adverse action being taken against the person against whom some adverse
  finding has been recorded, the contention of the learned counsel for the
  appellant may perhaps would have been entertainable. The government
  actually takes action or it does not or the fact that the report is yet to be
  considered from that angle, cannot be a reason to submit that it won't be
  appropriate stage to approach the Court. There may be occasions where
G after consideration of report the government may not decide to take any
  action against the person concerned yet the observation and remarks may
  be such which may play upon the reputation of the person concerned and
  this aspect of the matter has been fully taken care of under clause (b) of
  Section SB of the Act. It is not, therefore, necessary that one must wait
H till a decision is taken by the government to take action against the person
           STATE v. L.K. ADVANI [BRIJESH KUMAR, J.]                   855
after consideration of the report. We have already dealt with the point A
about the right to have and protect one's reputation. We, therefore, find
no force in the submission that the respondent no.I had approached the
Court at pre-mature stage. No other point has been urged on behalf of
the appellant. In our view, the judgment of the High Court calls for no
interference.
                                                                             B
      In view of the discussion held above, the appeal is dismissed. There
will, however, be no order as to costs.

B.S.                                                  Appeals dismissed.