- (1.) THESE applications, under Article 226 of the Constitution, have been taken up for consideration together and are disposed of by a common judgment. The petitioner, D. Motahar Hussain, in the first petition, was the Minister of State, Home Department, Government of West Bengal, during the period from 31st January, 1975 to 30th April, 1977. The petitioner, in the second petition, was the Chief Minister of the Government of West Bengal during the period from 30th March, 1972 to 30th April, 1977. They both have challenged, in these two applications, notices issued under Sec. 8b of the Commissions of Inquiry Act, 1952 issued by the respondent no. 2, who is the Secretary of the Commission of Inquiry, respondent no. 1. As notices were in identical terms and based on identical grounds, it would be appropriate to set out the relevant portion of the impugned notices which read as follows : "whereas a complaint has been made before the Authority vide Copy of Statement/affidavit and documents mentioned below : and WHEREAS the authority is of the opinion that your reputation is likely to be prejudicially affected by the inquiry you are hereby called upon to file a Statement ( With three extra copies ) in the form of an affidavit ( duty payable under the Stamp Act exempted ) duty sworn before an Authority empowered to administer oath, along with such documents on which you may propose to rely and a list of witnesses whom you may like to be examined if and when called upon by the Authority to give oral testimony at any stage of the proceedings, within two weeks from the date of receipt of this notice to the office of the Authority.
(2.) ALONG with the notice, a copy of the statement on affidavit sworn by Sm Abha Chakraborty on 30th September, 1978 and copies of certain detention orders under MISA being the Maintenance of Internal Security Act, 1971 were annexed. These orders were issued by the District Magistrate, Malda. An identical affidavit and identical copies of orders were also served on the second, petitioner. On receipt of the said notices, the petitioners wrote letters to the respondent no. 1, the Inquiry Commission to inform the petitioners the grounds upon which the alleged opinion of the Authority had been formed, that the reputation of the petitioners were likely to be prejudicially affected by the enquiry upon which the show Cause notices had been issued. The petitioners were informed by subsequent letters that they were given two weeks time to file their statements on affidavits but no ground or opinion upon which such opinion had been formed by the Authority had been served on the petitioners. The petitioners thereupon moved these applications under Article 226 of the Constitution and thereafter I issued the rule nisi and granted certain interim orders.
(3.) THE respondents in these petitions are : Sri Haratosh Chakrabarty, Presiding Officer, Emergency Excesses Inquiry commission, West Bengal, respondent no. 1, Secretary, Emergency Excesses Inquiry Commission, West Bengal is the respondent no. 2, Secretary, Home Department, Government of West Bengal is the respondent no. 3 and Union of India is the respondent no. 4. The petitioners in this application challenge the notification dated 30th December, 1978 whereby the Commission of Inquiry consisting of Sri Haratosh Chakrabarty, as Presiding Officer was set up to enquire into certain offences. The said notification recited that. "whereas under clause (ii)of paragraph 3 of the Ministry of Home Affairs notification dated 28th May, 1977 the enquiry by the Commission of Inquiry commonly known as the Shah Commission of Inquiry appointed in exercise of the power conferred by Section 3 of the Commission of Inquiry Act, 1952 was to be in regard to such instances relating to paragraphs 2 (a) (i) to (v) of the said notification brought to its notice by the Central government or a State Government or a Union Territory for enquiry and whereas the Governor being of the opinion that it was necessary to appoint an authority, (a)to ascertain the fact and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the Shah Commission of Inquiry which should be brought to the notice of the said Commission ; (b)to generally inquire into all other Instances as are relatable to one or other of the terms of reference of the said Commission which the authority might deem fit to enquire into ; (c)to inquire into such complaints or allegations as might be referred to the authority or to the State Government by the Shah Commission, set up, on approval of the Central Government as required by section 11 read with clause (a) of the proviso to sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952, an Authority designated as "the Emergency excesses Inquiry Authority, West Bengal" consisting of Shri Haratosh Chakraborty, a member of the West Bengal Higher Judicial Service, with the following as the terms of reference ; (a) to ascertain the facts and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the shah Commission of Inquiry which should be brought to the notice of the said Commission (b) to generally inquire into all other instances as are relatable to one or other of the terms of reference of the Commission which the Authority may deem fit to inquire and (c) to enquire into such complaints or allegations as may be referred to the Authority or the State Government by the said Commission and the Authority was to : " (i) in regard to (a) above, make interim reports and submit final report to the State Government not later than 30th June, 1978 and (ii) in regard to (b) and (c) above, make interim report to the said Commission and submit final report with recommendations for action to be taken not later than 30th June, 1978 and whereas the term of the said Emergency Excesses Inquiry Authority West Bengal, was extended to 31st December, 1978, by this Department Resolution Nos. 2277-HS dated 30th June, 1978 and 5612-HS dated 29th September, 1978 : and whereas the said Shah Commission communicated to the State Government that the Authority was not required to send its report to the Commission on complaints or subject-matter of inquiry 73' received by them directly from the complaints or from the State Government it was, in partial modification of this Department Resolution No. 1519-HS dated 18th May, 1978 read with Resolution No. 5612-HS dated 29th September, 1978 directed that the Authority shall, (i) in regard to (a) and (b) of the terms of reference, make interim reports and submit final report to the State Government not later than 31st December, 1978; and (ii) in regard to (e) of the said terms of reference, make interim reports to the said Commission and submit final report with recommendations for action to be taken not later than 31st December, 1978. And whereas the term of the Shah Commission of Inquiry is to expire on 31st December, 1978 and the said Commission desires that such complaints as may be pending with the Authority on 31 st December, 1978 may be taken over by the State Government for inquiry through its own agencies. And whereas the term of the Emergency excesses Inquiry Authority, West Bengal, shall also expire on 31st December, 1978 and number of complaints received from the Shah Commission or the State Government or from members of the public shall remain indisposed of on that date : and whereas the Governor is of the opinion that it would be a definite matter of public importance to complete the inquiry in respect of the complaints pending and whereas no Commission of Inquiry has been appointed by the Central Government to inquiry into the complaints which shall remain indisposed of by the Emergency excesses Inquiry Authority, West Bengal, on 31st December, 1978 : now, therefore, in exercise of the power conferred by section 3 of the Commissions of Inquiry Act, 1952 (60 of 1962) the Governor is pleased hereby to appoint, with effect from 1st January, 1979, a Commission of Inquiry consisting of Shri Haratosh Chakraborty, a member of the West Bengal Higher Judicial Service. The terms of reference of the Commission shall be as follows : "1. (a) to deal with the complaints, pending with the Emergency Excesses. Inquiry Authority, West Bengal on 31st December, 1978 as if these were preferred before the Commission and ascertain on inquiry whether there occurred (i) subversion of lawful processes and well established conventions, administrative procedures and practices, abuse of authority, misuse of powers, excess and or malpractices committed during the period when the Proclamation of Emergency made on 25th June, 1975 under Article 352 of the Constitution was in force or in days immediately preceding the said Proclamation, (ii) misuse of powers of arrests or issue of detention orders where such arrests or orders are alleged to have been made on considerations not germane to the purposes of the relevant Acts during the aforesaid period, (iii) maltreatment of and/or atrocities on persons arrested under DISIR or detained and their relatives and close associates during the aforesaid period, (iv) compulsion and use of force in the implementation of the family planning programmed during the aforesaid period, (v) indiscriminate high handed or unauthorized demolition of houses, huts, shops, buildings, structures and destruction of property in the name of slum clearance or enforcement of Town Planning or land use schemes, during the aforesaid period provided that the inquiry shall be in regard to acts of such abuse of authority, misuse of powers, excesses, malpractices, etc. alleged to have been committed by public servants, and provided further that the inquiry shall also cover the conduct of other individuals who may have directed instigated or aided or abetted or otherwise associated themselves with the commission of such acts by public servants (b)To consider such other matters which, in the opinion of the commission, have any relevance to the aforesaid allegations and (c)To recommend measures which may be adopted for preventing the recurrence of such abuse of authority, misuse of powers, excesses! and malpractices. This notification further gives to the Commission certain incidental powers under the Commissions on Inquiry Act, 1952 and for the purpose of these applications, it is not necessary to set out those. it was further stipulated that the Commission should submit the report not later than 30th June, 1978. ;