{"id":170697,"date":"2003-09-16T00:00:00","date_gmt":"2003-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-lal-krishna-advani-ors-on-16-september-2003"},"modified":"2016-12-29T14:59:15","modified_gmt":"2016-12-29T09:29:15","slug":"state-of-bihar-vs-lal-krishna-advani-ors-on-16-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-lal-krishna-advani-ors-on-16-september-2003","title":{"rendered":"State Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003<\/div>\n
Author: B Kumar<\/div>\n
Bench: Brijesh Kumar, Arun Kumar<\/div>\n
           CASE NO.:\nAppeal (civil)  1792 of 1997\n\nPETITIONER:\nState of Bihar\t\t\t\t\t\n\nRESPONDENT:\nLal Krishna Advani & Ors.\t\t\t\n\nDATE OF JUDGMENT: 16\/09\/2003\n\nBENCH:\nBrijesh Kumar & Arun Kumar\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
BRIJESH KUMAR, J.\n<\/p>\n
\t\tIn this appeal, preferred by the State of Bihar, ultimately the
\nquestion which falls for consideration is the effect of non-compliance of
\nall time tested and ancient principle of natural justice.  One cannot be
\ncondemned unheard is one of the attributes of the principles of natural
\njustice, which operates even in absence of a written provision under the
\nlaw. Though in the case in hand there is such a provision which,
\naccording to the appellant, was not necessary to be complied with, but the
\nHigh Court of Patna has held to the contrary.  It relates to applicability of
\nSection 8B of the Commissions of Inquiry Act, 1952 (60 of 1952) (for
\nshort ‘the Act’).\n<\/p>\n
\t\tIn the year 1989 some communal riots took place in
\nBhagalpur District, State of Bihar, resulting in many deaths and left some
\nothers injured.  Undoubtedly, it was a matter of concern and the State
\nGovernment decided to constitute a Commission of Inquiry under Section
\n3 of the Act, which reads as under :\n<\/p>\n
“3. Appointment of Commission.- (1) The
\nappropriate Government, may, if it is of opinion
\nthat it is necessary so to do, and shall, if a
\nresolution in this behalf is passed by [each House
\nof Parliament or, as the case may be, the
\nLegislature of the State,] by notification in the
\nOfficial Gazette, appoint a Commission of Inquiry
\nfor the purpose of making an inquiry into any
\ndefinite matter of public importance and
\nperforming such functions and within such time as
\nmay be specified in the notification, and the
\nCommission so appointed shall make the Inquiry
\nand perform the functions accordingly:\n<\/p>\n
xxx\t\t\t\txxx\t\txxx<\/p>\n
(2) The Commission may consist of one or more
\nmembers appointed by the appropriate
\nGovernment, and where the Commission consists
\nof more than one member, one of them may be
\nappointed as the Chairman thereof.\n<\/p>\n
Xxx\t\t\t\txxx\t\txxx<\/p>\n
(4) The appropriate Government shall cause to be
\nlaid before [each House of Parliament or, as the
\ncase may be, the Legislature of the State,] the
\nReport if any, of the Commission on the inquiry
\nmade by the Commission under sub-section (1)
\ntogether with a memorandum of the action taken
\nthereon, within a period of six months of the
\nsubmission of the Report by the Commission to the
\nappropriate Government.]”\n<\/p>\n
The terms of the Reference are as follows :\n<\/p>\n
“a)\tto enquire into the facts and circumstances
\nleading to communal disturbances in the district of
\nBhagalpur and adjacent areas on 24th October,
\n1989 and thereafter;\n<\/p>\n
b)\tto enquire into whether these disturbances
\nwere pre-planned and, if so, the elements
\nresponsible for the same;\n<\/p>\n
c)\tto enquire whether measures taken by the
\nDistrict Administration to prevent and deal with
\nthe said disturbances were timely and adequate,
\nand to fix responsibility for lapses if any, in this
\nregard with the said disturbances were timely and
\nadequate, and to fix responsibilities for lapses if
\nany, in this regard;\n<\/p>\n
d)\tto recommend measures for preventing
\nrecurrence of such disturbances;\n<\/p>\n
e)\tto consider such other matter relating to
\nthese communal disturbances and make such
\nrecommendations as the Commission may think it
\nproper and necessary.”\n<\/p>\n
It was initially a single Member Commission and Mr.Justice
\nRam Nandan Prasad was appointed as a sole Member of the Commission.
\nSubsequently, however, on 20.09.1993 two others were also notified as
\nMembers of the Commission, namely, Mr.Justice Ram Chandra Prasad
\nSinha and Mr.Justice S.Shansul Hasan.  They are also retired Judges of the
\nHigh Court.  The Commission seems to have been divided in its opinion;
\none report was  handed down by Justice Ram Nandan Prasad and the second
\nby the other two members, namely, Mr.Justice Ram Chandra Prasad Sinha
\nand Mr.Justice S.Shansul Hasan.  The respondent no.1 Shri Lal Krishna
\nAdvani and some others felt aggrieved by certain parts of the Report
\nsubmitted by the two members of the Commission.  In this appeal we are
\nconcerned with the remarks relating to the respondent no.1 alone.  The
\nrespondent no.1 felt that such remarks made in the Report submitted by the
\ntwo members of the Commission were uncalled for and were not necessary
\nto be made looking to the terms of the Reference and in any case the remarks
\nare such which impinge upon his reputation, as a public man. According to
\nhim, his reputation and image was adversely affected in the eyes of the
\npeople and such parts of the report were liable to be expunged, and the
\nappellant was required to be directed not to take any action in pursuance of
\nsuch observations against him, in the Report, more so, when the respondent
\nno.1 was not issued notice under Section 8B of the Act.  If the notice had
\nbeen given it might have provided an opportunity to the respondent no.1 to
\ndispel whatever misconceptions were entertained and the findings recorded
\nin the Report.  It would be appropriate to peruse the provision as contained
\nunder Section 8B of the Act :\n<\/p>\n
“8B. Persons likely to be prejudicially affected
\nto be heard.- If, at any stage of the inquiry, the
\nCommission,-\n<\/p>\n
(a)\tconsiders it necessary to inquire into the
\nconduct of any persons or<\/p>\n
(b)\tis of opinion that the reputation of any
\nperson is likely to be prejudicially affected
\nby the inquiry, <\/p>\n
the Commission shall give to that person a
\nreasonable opportunity of being heard in the
\ninquiry and to produce evidence in his defence:\n<\/p>\n
\tProvided that nothing in this section shall
\napply where the credit of a witness is being
\nimpeached.”\n<\/p>\n
One of the paragraphs of the Report in which a reference to Mr.Advani
\nhas been made as also quoted in the judgment of the High Court, reads as
\nfollows :\n<\/p>\n
“\u2026..Thus Jansangh disappeared and became a part
\nof the Janta Party.  Along with people like . . . . ..
\nMr.Advani became Information and Broadcasting
\nMinister and Vajpaee the Minister of External
\nAffairs, while invidiously Mr.Advani spreading
\nthe message of his cult through the official
\nmedia\u2026.”\n<\/p>\n
Paragraph 63 is also quoted, which reads as under :\n<\/p>\n
“\u2026..Mr.Advani really spilled the beans and
\nrevealed the real intention of the BJP in his
\nstatement Reported in the PANCHAJANYA and
\ncopied by the ‘Times of India’ dated January 30th,
\n1993″\u2026.. “Speaking for ourself, were distressed to
\nread that statement not out of fear because our life
\nand our religion are both safe in this country but
\nbecause of an eminent national leader should resort
\nto threat of rioting unless the norms set by him are
\nfollowed\u2026.”.\n<\/p>\n
Yet another part of the Report in paragraph 625 reads as under :\n<\/p>\n
“\u2026\u2026The demand by him that Muslim and
\nChristian should style themselves as Mohammadi
\nHindu and Christian Hindu etc. is a proof of this
\ndepraved an achronistion ideology\u2026.” (v) “\u2026.One
\nbecame the protector of Islam by peddling the
\nslogan of “ISLAM IN DANGER” the other is
\nexactly doing the same thing by peddling the
\nconcept of protecting the Hindu\u2026.”(vi) <\/p>\n
In the same part of the Report paragraph 626 reads as under :\n<\/p>\n
“\u2026..The Islam which Mr.Jinna and the Muslim
\nLeague tried to save led to the chaotic condition in
\nPakistan.  Hinduism or Sanatan Dharma which
\nMr.Advani is trying to save is creating the same
\nchaotic condition in India\u2026..”\n<\/p>\n
The case of the respondent no.1 has been that such findings and
\nobservations as recorded by the two member Report of the Inquiry
\nCommission objectionably painted him in the minds of the people
\naffecting his reputation and bringing down his image in the public.
\n\t\tThe High Court, in our view, has been rightly cautious in
\nobserving that it was not concerned about the merit on the question of
\nappointment or the recommendations of the Commission but it confined
\nits inquiry to the parts of the Report which, according to the respondent
\nno.1, were objectionable and it was necessary that he was allowed an
\nopportunity before making any comment on his alleged conduct.  The
\nHigh Court, after elaborate discussion on the point involved, partly
\nallowed the writ petition,   ordering that such parts of the report shall be
\ninoperative and no action can be taken on the basis thereof.
\n\t\tThe High Court, while referring to a decision Reported in
\nAIR 1967 SC p. 122, The State of Jammu and Kashmir & Ors. Vs.
\nBakshi Gulam Mohammad & Anr., observed that an authority who
\ntakes a decision, which may have civil consequences and affects right of
\na person, the principle of natural justice would at once come into play.
\nReputation of an individual is an important part of one’s life.  The High
\nCourt then quoted a passage from a decision of this Court reported in
\nAIR 1989 SC p.714 Smt.Kiran Bedi and Jinder Singh Vs. Committee
\nof Inquiry & Anr., which passage contains the observations from an
\nAmerican decision in D.F.Marion V. Minnie Davis, 55 American LR
\n171, reads as follows :\n<\/p>\n
“The right to enjoyment of a private reputation,
\nunassailed by malicious slander is of ancient
\norigin, and is necessary to human society.  A good
\nreputation is an element of personal security and is
\nprotected by the Constitution equally with the right
\nto the enjoyment of life, liberty and property.”\n<\/p>\n
Some decisions, to which our attention has been drawn by Shri Harish
\nN.Salve, learned senior counsel appearing for the respondent no.1, may
\nbe referred.  1983 (1) SCC p.124, Board of Trustees of the Port of
\nBombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors.,
\nwherein it was observed that right to reputation is a facet of right to life
\nof a citizen under Article 21 of the Constitution.  He has also referred to
\nthe International Covenant on Civil and Political Rights, 1965 (ICCPR),
\nrecognizing right to have opinions and the right of freedom of expression
\nsubject to the right of reputation of others.  The Covenant provides :
\n“1. Everyone shall have the right to hold opinions
\nwithout interference.\n<\/p>\n
2.\tEveryone shall have the right to freedom of
\nexpression; this right shall include freedom to
\nseek, receive and impart information and ideas of
\nall kinds, regardless of frontiers, either orally, in
\nwriting or in print, in the form of art, or through
\nany other media of his choice.\n<\/p>\n
3.\tThe exercise of the rights provided for in
\nparagraph 2 of this article carries with it special
\nduties and responsibilities.  It may therefore be
\nsubject to certain restrictions, but these shall only
\nbe such as are provided by law and are necessary;\n<\/p>\n
(a)\tFor respect of the rights or reputations of
\nothers;\n<\/p>\n
(b)\tFor the protection of national security or of
\npublic order (ordre public), or of public
\nhealth or morals.”\n<\/p>\n
It is thus amply clear  that  one is entitled to  have and preserve, one’s
\nreputation and one also has  a right to protect it. In case any authority, in
\ndischarge of its duties fastened upon it under the law, traverses into the
\nrealm of personal reputation adversely affecting him, must provide a
\nchance to him to have his say in the matter.  In such circumstances right
\nof an individual to have the safeguard of principles of natural justice
\nbefore being adversely commented upon by a Commission of Inquiry is
\nstatutorily  recognised and violation of the same will have to bear the
\nscrutiny of judicial review.  A reference may be made to  [1984] A.C.
\n808, Peter Thomas Mahon Vs Air New Zealand Ltd & Ors.
\n\t\tThe provision as contained under Section 8B of the Act
\nquoted above, was brought into the statute  book by Amending Act 79 of
\n1971.\n<\/p>\n
\t\tIt may be noticed that the amendment was brought about,
\nabout 20 years after passing of the main Act itself.  The experience
\nduring past two decades must have made the Legislature to realize that it
\nwould but be necessary to notice a person whose conduct the
\nCommission considers it necessary to inquire into during the course of
\nthe inquiry or whose reputation is likely to be prejudicially affected by
\nthe inquiry. It is further provided that such a person would have a
\nreasonable opportunity of being heard and to adduce evidence in his
\ndefence. Thus the principle of natural justice was got inducted in the
\nshape of statutory provision.  It is thus incumbent upon the Commission
\nto give an opportunity to a person, before any comment is made or
\nopinion is expressed which is likely to  prejudicially affect that person.
\nNeedless to emphasise that failure to comply with principles of natural
\njustice renders the action non-est as well as the consequences thereof.
\n\t\tShri Dinesh Dwivedi, learned counsel appearing for the
\nappellant submits that since no action has been taken against the
\nrespondent no.1  so far, in pursuance of the report of the Inquiry
\nCommission there was no occasion for him to move the Court in the
\nmatter. It was not the appropriate stage to raise any grievance by filing a
\npetition challenging certain observations made by the Commission of
\nInquiry. The petition was thus premature.  We feel that it may not be
\nnecessary for a person to wait till certain action is initiated by the
\nGovernment considering the report of the Inquiry Commission where the
\nobservations made by the Commission are such which militate against
\nthe reputation of a person and particularly without giving any chance to
\nsuch a person to explain his conduct.  It would be open for him to move
\nthe Court for deletion of such remarks made against him violating the
\nprovisions of Section 8B of the Act.\n<\/p>\n
\t\tIt is then submitted by Shri Dwivedi that the Commission
\nwas appointed to inquire as to whether the riots “were pre-planned and, if
\nso, the elements responsible for the same”.  The Commission was also
\nrequired to recommend measures for preventing such recurrences.
\nTherefore, the terms of the Reference were quite wide and the anxiety of
\nthe Government was only to identify the elements behind such
\ndisturbances and to take sufficient measure to prevent recurrence in
\nfuture.  The Commission was not inquiring into the conduct of the
\nrespondent no.1 in particular.  These were some general observations
\ntouching the matter under reference to the Commission. In this
\nconnection, relying upon a decision reported in 1977(4) SCC p.608,
\nState of Karnataka vs. Union of India & Anr.,<\/a> a seven Judge bench
\njudgment, referred to the observations made in paragraph 77 to say that
\nthe scope of such inquiries is wide enough to cover anything reasonably
\nrelated to the matter under inquiry. It is further submitted in reference to
\nobservations made in paragraphs 184 and 186 of the aforesaid decision
\nthat the function of the Commission is purely  fact-finding and its
\npronouncement is neither binding nor a definitive judgment.  The
\nCommission  is required to submit its report, which may or may not be
\naccepted by the appointing authority.  It is further submitted that  the
\nstage for any grievance arrives when in consideration of the report the
\nauthority decides to take any action not otherwise.  The Commission has
\nno power of adjudication in the sense of passing an order which can be
\nenforced.  A reference has also been made to a case reported in AIR 1956
\nSC page 66, Brijnandan Sinha Vs. Jyoti Narain, a Division Bench
\nJudgment, to indicate that report made by the Commissioner under the
\nPublic Servants (Inquiries) Act (37 of 1850) is merely expression of his
\nopinion and it lacks both finality and authoritativeness.  Learned Counsel
\nhas then referred to 1959 SCR page 279, Shri Ram Krishna Dalmia Vs.
\nShri Justice S.R.Tendolkar & Ors., a Constitution Bench Judgement, to
\nsubmit that the recommendations of Commission of Inquiry are not
\nenforceable proprio vigore. It is not an adjudication.  It is merely a
\nrecommendation of the Commission.  On the basis of the decisions
\nreferred to above, much stress has been given  on the point that this was
\nnot the stage for respondent no.1 to have approached the Court raising
\nany grievance in respect of some observations made here and there while
\ninquiring into the Bhagalpur communal riots, its reasons and to
\nrecommend measures to check such  recurrences in future.
\n\t\tWe have already observed that had it been only a question of
\nany adverse action being taken against the person against whom some
\nadverse finding has been recorded, the contention of the learned counsel
\nfor the appellant may perhaps would have been entertainable.  The
\ngovernment actually takes action or it does not or the fact that the report
\nis yet to be considered from that angle, cannot be a reason to submit that
\nit won’t be appropriate stage to approach the Court.  There may be
\noccasions where after consideration of report the government may not
\ndecide to take any action against the person concerned yet the
\nobservation and remarks may be such which may play upon the
\nreputation of the person concerned and this aspect of the matter has been
\nfully taken care of under clause (b) of Section 8B of the Act.  It is not,
\ntherefore, necessary that one must wait till a decision is taken by the
\ngovernment to take action against the person after consideration of the
\nreport.  We have already dealt with the point about the right to have and
\nprotect one’s reputation.  We, therefore, find no force in the submission
\nthat the respondent no.1 had approached the Court at  pre-mature stage.
\nNo other point has been urged on behalf of the appellant. In our view, the
\njudgment of the High Court calls for no interference.
\n\t\tIn view of the discussion held above, the appeal is
\ndismissed.  There will, however, be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003 Author: B Kumar Bench: Brijesh Kumar, Arun Kumar CASE NO.: Appeal (civil) 1792 of 1997 PETITIONER: State of Bihar RESPONDENT: Lal Krishna Advani & Ors. DATE OF JUDGMENT: 16\/09\/2003 BENCH: Brijesh Kumar & Arun Kumar JUDGMENT: JUDGMENT BRIJESH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170697","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-lal-krishna-advani-ors-on-16-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003 - 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