Seventeen years later, on June 30, 2009, Justice Liberhan has submitted his report to the prime minister. It is an opportune time to raise several serious issues including the credibility of the institution of commissions of inquiry, take stock of the working of such commissions, examine what ails them, and seek solutions to salvage the situation. Experience and hindsight render one bold to be blunt and speak out.

The Commissions of Inquiry Act provides that a state or Central government may set up one to inquire into a matter of definite public importance. A cynical view has gained ground that commissions of inquiry are established merely to deflect the popular mood of the public and stave off inconvenient questions in the legislature and are not really intended to fathom the facts leading to a matter of moment. The saga of most of the commissions before, during and after they were set up, adds grist to the cynical mill.

A commission of inquiry can be headed by any person in whom the government has confidence. The coefficient of confidence commanded by judges being high, by default such commissions are headed by a judge, sitting or retired. The choice of the presiding judge often gets embroiled in political quagmire with the government jockeying to find the least “unsuitable” judge for the job. In the case of a sitting judge, the choice is usually made by the concerned chief justice, leaving little scope for the government to manoeuvre and manipulate, unless the chief justice is pliable. Pliability of the presiding officer has greater probability in the case of a retired judge, though honourable exceptions are not unknown.

Even after setting up a commission and appointing a judge to head it, governments do everything possible to impede its work. To begin with, no proper place is made available for holding the proceedings. Requisite staff and other infrastructure are denied or indefinitely delayed. Unless the presiding officer has the tenacity of an English pit-bull, and the epidermis of a pachyderm, no headway can be made for months on end.

Then, there starts the mindgame of conjuring up all manners of obstacles in its smooth functioning. Relevant documents are not produced by officers on vague and often frivolous pleas of state privilege, material witnesses are not produced. One is amazed at the manner in which the state, which solemnly set up the commission, finds ways and means to retard its work. To add to the difficulty, every conceivable political party utilises the opportunity to extract maximum political mileage. Busybodies suddenly wake up and rush forward to heap unsolicited advice, even if well meant, and burden the record of the commission with tonnes of material of least relevance. Most are represented by lawyers who leave no stone unturned to milk the occasion to garner fame and riches. Forensic pleas, mostly frivolous, are flung at the judge; cross-examination is conducted ad nauseam; adjournments are frequently sought on the convenience of counsel, illness of witnesses and myriad other excuses, old and new.

The unrealistic timeframe given by the government to complete the inquiry soon ends and many extensions are sought and given liberally by the government. Fading public memory helps in blotting out the very momentous reason for which the commission was set up. Finally, when the lionhearted do produce a report, it is placed on the floor of the House on the last day of the session with an Action Taken Report with insufficient copies printed and not distributed rendering impossible any meaningful debate on its contents. Time, talent and public funds are wasted in each such exercise. Cynics snigger, wags smile, and the debate about the futility of the exercise continues.

There needs to be a change in mindset. A commission of inquiry is not a substitute for a debate on the floor of the legislature on any important public issue. The attempt of governments to deflect public opinion and questions in the legislature by raising the bogus plea of the issue being sub-judice before the commission needs to be deprecated.

Nothing prevents the government from entrusting such inquiries to bureaucrats, but their credibility today is very low. If, willy-nilly, a judge has to be appointed, the choice of such appointment must always lie with the chief justice who, presumably, does not toe the line of the government. Having appointed the commission in all seriousness, the government must treat it with the same sense of urgency as an agency doing firefighting. All material sought must be made immediately available without any reservation, deferring to his discretion in the matter of privilege. Considering the end result to be achieved, the commission must restrict representation before it only to such persons as it thinks are absolutely necessary to unravel and discern the truth. Short shrift must be given to publicity hunters and peddlers of political pedagoguery. Cross-examination should be pruned to the irreducible minimum commensurate with the demands of natural justice. The judge must at all times be in the driving seat of proceedings and determine their speed and direction. He must brook neither interference nor interruption, using fully the powers under the act to summon and enforce attendance of all persons deemed necessary, however high and mighty they be.

It is time to ensure that judicial time and talent do not go waste by amending the act to make the findings of a commission of inquiry binding on the government that set it up. If, at all, the government is serious, it should declare at the time of setting up the commission that it would accept the report and act upon it. The legislation should be amended and brought on line with the Truth Commission in South Africa and similar laws in other countries, which make the findings of the commission binding on the government. The power to commit for contempt must be invested in the commission to prevent it from being reduced to a joke by the powerful.

Establishing of a commission of inquiry must be an honest effort to discover what went wrong with a view to remedy the situation and learn lessons to avoid similar events in the future. The facts brought to light must result in appropriate action against persons in a court of law and immediate implementation of administrative measures to rectify the lapses highlighted. Above all, there must be political will to act, and act firmly and decisively, without fear or favour. Absent such will, the quest for truth by a commission of inquiry will be the quest for the Golden Fleece sans Jason and sans the Argonauts!

The writer, a retired judge of the Supreme Court, headed a commission to inquire into the riots in Mumbai during December 1992-January 1993express@expressindia.com