The Hindu : National : Pathak must have all the powers of a statutory inquiry panel: BJP

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Thursday, Nov 10, 2005

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Pathak must have all the powers of a statutory inquiry panel: BJP

Special Correspondent

"Nehru chose non-statutory route to enquire into K.D. Malviya case"

Justice R. S. Pathak

New Delhi: With the Union Cabinet all set to finalise the terms of reference of the Justice R.C. Pathak inquiry into the Volcker Committee's allegations, the BJP demanded on Wednesday that the probe must not be confined to the role of Hamdan Exports and should be armed with all the powers of a statutory inquiry.

While the legal fraternity is unanimous that the probe cannot be Hamdan-centric — "the Commission should cover the veracity of all references in the Volcker report which have caused public disquiet since their publication in India on October 29," seems to be the common view — they are of the opinion that the transparency of the inquiry and the degree of accountability to Parliament are more crucial than statutory authority.

If the Government decides not to make the Pathak inquiry a statutory enterprise under the 1952 Commission of Inquiry Act, there are plenty of precedents — both in India and Britain — that it can fall back upon.

Indeed, the 1963 inquiry into allegations of corruption against K.D. Malviya, who was Minister for Mines and Fuel in the Nehru Cabinet at the time, was conducted on a non-statutory basis by a sitting judge of the Supreme Court, S.K. Das. Justice Das reviewed all the evidence, including the account books of the businessman in which mention had been made of a payment to Malviya, and found two of the six charges against the Minister to be valid. Malviya resigned as a result.

`Public hearings better'

According to senior counsel, C.S. Vaidyanathan, since the object of the probe is to ensure that no public wrong has been committed, it is essential that there is transparency in the investigation by Justice Pathak. Though there is no requirement, he says there should be public hearings. The key issue, say jurists, is for the Pathak Commission to be able to access all the relevant documents and individuals it needs in order to make a finding. In the event that Justice Pathak finds he is not able to secure the cooperation of certain individuals, the Government should be prepared to arm him with powers under Section 11 of the Commission of Inquiry Act.

Inquiries in U.K.

In Britain, 11 of the 30 notable inquiries ordered by the British Government since 1990 — or nearly 40 per cent — have been non-statutory. Among these were the 1996 Scott inquiry into the export of defence equipment and dual-use goods to Iraq as well as the Bingham probe into the collapse of BCCI. Earlier, the Lord Denning inquiry into the Profumo scandal in the 1960s was not held under the provisions of the Tribunals of Inquiry (Evidence) Act of 1921.

Timeframe to be set

Senior counsel Rajeev Dhavan worries that that if Justice Pathak's probe is only an executive one, it may not be accountable to Parliament. "We have already seen how the probe by Justice Banerjee into the Godhra train carnage is being criticised with some political implications." He says the Justice Pathak committee must not be seen as a cover-up operation. The Government must indicate the timeframe within which the probe should be completed; the time limit should not be more than six weeks or two months. The committee should coordinate with Virendra Dayal — the former IAS and UN official named by the Government as its special envoy in the case — to get the necessary documents and conduct its proceedings openly. If possible these proceedings should be telecast live to inspire confidence among the public. The Government must commit itself to place the report of the committee before Parliament during the Budget session in February 2006, says Mr. Dhawan.

Former Attorney-General and senior counsel, Soli Sorabjee, is of the view that it would have been better if the probe has been ordered under the Commissions of Inquiry Act. At the same time, he expects Justice Pathak to conduct the probe thoroughly and independently. "I do not believe that Justice Pathak who is known for his independence and integrity would ever be a party to a cover-up operation", says Mr. Sorabjee.

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