# STATE OF JAMMU AND KASHMIR v. BAKSHI GHULAM MOHAMMAD

- **Citation:** [1966] Supp. 1 S.C.R. 401
- **Court:** Supreme Court of India
- **Decided:** 1966-05-06
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat, J. M. Shelat, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-jammu-and-kashmir-v-bakshi-ghulam-mohammad-3866
- **Pages:** 18

## Headnote

Constitution of Jammu and Kashmir, s. 37-Jammu and Kashmir Commission of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of a
Minister while in office, whether can be subject of inquiry under
Inquiry Act-S. 37 of Constitution whether a bar to such inquiryMatters of public importance' and 'definite' in s. 3, meaning of-Affidavits fil.ed before Commission of Inquiry-Right to cross examine
deponents, extent of.
The first respondent became a member of the Council of Minister' of the State of Jammu and Kashmir in 1947 and was the Prime
Minister of the State from 1953 to January 1963, when he resigned:
Thereafter a Notification was issued by the State Government under
s. 3 of the Jammu and Kashmir Commission of Inquiry Act 1962 setting
up a Commission to inquire into the wealth, acquired by the first respondent and certain specjfied members of his family during his period
of office; the c·ommission: was also to inquire whether in acquiring
this wealth there was any abuse of his official position by the first
respondent or the said relatives. The Commiss;on so appointed held
certain sittings between February 1965 and August 1965 in which
the first respondent took part. In September 1965 he filed a writ
petition before the High Court of J ammu and Kashmir and the High
Court, al'Iowing the sa!d petition, set aside the Notification instituting the inquiry and quashed the proceedings of the Commission. The
State appealed to the Court.
HELD: (i) Section 37 of the Constitution of Jammu and Kashmir
talks of the collec1Jcve responsibility of Ministers to the Legislative
Assembly. That' only means that the Council of Ministers will have
to stand or fall together, every member being responsible for the
action of any other. The section does not mean that a Minister is
p
responsible for his acts only to the Legislature and no action can be
taken against. him except for criminal or tortious acts, in th€ ordinary course of law, unless the Legislature by a resolution demanded it. No British convention to this effect, if any, can be said
to
have been adopted bv s. 37. Furthermore, the responsibility to the
Legislature is of the Counoil of Ministers, and not of these who
have, like the first respondent ceased to be Ministers. [405C,E].
(ii) Section 3 Of the Commission of foquiry Act expressly &ives
G ··power to Government as well as to both the Houses of Legislature
to initiate .. action instituting an inquiry. When: enacting it the Legislature obviously did not consider that there was any conveption, or
anything in s. 37 which prevented a Commission of Inquiry being set
up under the Act at the instance of the Government or the Legislative Council. [405F-G]
B
(iii) The acts of a Minister while in office do not cease to be
matters of public :mportance after he ceases to hold office; their
character cannot change. When. it is alleged that a Minister h8' acquired vast wealth for himself and his friends by abuse of his offi- ·
. ,,c\aJ'. position, there can .be po question that.the matter is of .public
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SUPRE:.IE COURT REPORTS
[1966] SUPP, S.C.R.
importance. h does not cease to be of. public importance merely
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because what 1s pro)l05ed JS to mqmre mto allegations and not into
the steps to be taken. to prevent lapses in the future. Nor can absence of pub!1c ag1tat1on show that the facts to be inquired into are
not of public importance. [40iE-G; 408-G]
Ram Krishan Dalmia v. Shri Justice S.
R.
Tendo!kar, [1959]
S.C.R. 279, referred to.
(.iv) It is incorrect to say that• allegations mentioned are not
definite or that an inquiry into them is not contemplated by the
Inquiry Act. [ 409E-F]
(v) It cannot be inferred from the provisions of s. 10 of the Act
that a Commission of Inquiry can inquire into the conduct of a person only mr1dcntally, when the mam inquiry is in respect of
something else. What can be done indirectly should obviously have
been considered capube of bting done directly. [411B]
(vi) On the facts o.f the case the inquiry could not

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STATE OF JAMMU AND KASHMIR
v
BAKSHI GHULAM MOHAMMAD
May 6, 1966
[A. K. SARKAR, C.J., J. R. MUDHOLKAR, R. S. BACHAWAT,
J. M. SHELAT AND RAGHUBAR DAYAL, JJ.]
Constitution of Jammu and Kashmir, s. 37-Jammu and Kashmir Commission of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of a
Minister while in office, whether can be subject of inquiry under
Inquiry Act-S. 37 of Constitution whether a bar to such inquiryMatters of public importance' and 'definite' in s. 3, meaning of-Affidavits fil.ed before Commission of Inquiry-Right to cross examine
deponents, extent of.
The first respondent became a member of the Council of Minister' of the State of Jammu and Kashmir in 1947 and was the Prime
Minister of the State from 1953 to January 1963, when he resigned:
Thereafter a Notification was issued by the State Government under
s. 3 of the Jammu and Kashmir Commission of Inquiry Act 1962 setting
up a Commission to inquire into the wealth, acquired by the first respondent and certain specjfied members of his family during his period
of office; the c·ommission: was also to inquire whether in acquiring
this wealth there was any abuse of his official position by the first
respondent or the said relatives. The Commiss;on so appointed held
certain sittings between February 1965 and August 1965 in which
the first respondent took part. In September 1965 he filed a writ
petition before the High Court of J ammu and Kashmir and the High
Court, al'Iowing the sa!d petition, set aside the Notification instituting the inquiry and quashed the proceedings of the Commission. The
State appealed to the Court.
HELD: (i) Section 37 of the Constitution of Jammu and Kashmir
talks of the collec1Jcve responsibility of Ministers to the Legislative
Assembly. That' only means that the Council of Ministers will have
to stand or fall together, every member being responsible for the
action of any other. The section does not mean that a Minister is
p
responsible for his acts only to the Legislature and no action can be
taken against. him except for criminal or tortious acts, in th€ ordinary course of law, unless the Legislature by a resolution demanded it. No British convention to this effect, if any, can be said
to
have been adopted bv s. 37. Furthermore, the responsibility to the
Legislature is of the Counoil of Ministers, and not of these who
have, like the first respondent ceased to be Ministers. [405C,E].
(ii) Section 3 Of the Commission of foquiry Act expressly &ives
G ··power to Government as well as to both the Houses of Legislature
to initiate .. action instituting an inquiry. When: enacting it the Legislature obviously did not consider that there was any conveption, or
anything in s. 37 which prevented a Commission of Inquiry being set
up under the Act at the instance of the Government or the Legislative Council. [405F-G]
B
(iii) The acts of a Minister while in office do not cease to be
matters of public :mportance after he ceases to hold office; their
character cannot change. When. it is alleged that a Minister h8' acquired vast wealth for himself and his friends by abuse of his offi- ·
. ,,c\aJ'. position, there can .be po question that.the matter is of .public
•
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402
SUPRE:.IE COURT REPORTS
[1966] SUPP, S.C.R.
importance. h does not cease to be of. public importance merely
A
because what 1s pro)l05ed JS to mqmre mto allegations and not into
the steps to be taken. to prevent lapses in the future. Nor can absence of pub!1c ag1tat1on show that the facts to be inquired into are
not of public importance. [40iE-G; 408-G]
Ram Krishan Dalmia v. Shri Justice S.
R.
Tendo!kar, [1959]
S.C.R. 279, referred to.
(.iv) It is incorrect to say that• allegations mentioned are not
definite or that an inquiry into them is not contemplated by the
Inquiry Act. [ 409E-F]
(v) It cannot be inferred from the provisions of s. 10 of the Act
that a Commission of Inquiry can inquire into the conduct of a person only mr1dcntally, when the mam inquiry is in respect of
something else. What can be done indirectly should obviously have
been considered capube of bting done directly. [411B]
(vi) On the facts o.f the case the inquiry could not be said to
be mala fide. [ 412F]
(v1i) The doctrine of Cabinet responsibility does not mean that
if an inquiry was made against one of the members of the Cabinet
that would be discrimination under Art. 14. The respondent was in
a class by himself and the classification was justified. [414A-Bl
(viii) The ru!e of natural justice only requires that a hearing
should be given. When the Commission refused permission to the
first respondent to cross-examine all the witnesses who had filed
affidavits against him no rule of natural justice was violated. [415G]
Meenolas Tea Estate v. Their Workmen, [1964]2 S.C.R. 165 and
Nacendra Nath Bora v. Commissioner of Hills Division & Appeals,
Assum [1958] S.C.R 1240.
(ix) Section 10 of the Act gives a right to cross-examine only
thse persons who give viva voce evidence t efore the Commissioner.
[ 416F]
(x) Section 4(c) of the Act does not confer a right on a party
appearing before the Commission to require a witness giving evidence by affidavit to be produced for his cross examination. The
Commission v:ould, of course, permit crOG~xamination in a case
where it thinks tbt r.ecessary. [417E]
CIVIL APPELLATE
JUR!SD!CTIO~: Civil Appeal No. 1102 of
1966.
Appeal from the judgment and order dated December 27.
1965 of the Jammu and Kashmir High Court in W. P. No. 67 of
1965.
C. K. Daphtary, Attorney-General, S. V. Gupte,
SolicitorGenera/, Jaswant Singh, Advocate-General. for the State of J. & K.
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H. R. Khanna, S. Javali, Ravinder Narain, for the appellants.
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B. Sen, /. N. Shro.ff, M. K. Banerjee. B. N. Kirpal, R. K. Kaul,
R. N. Kaul. P. L. Handu, La/it Bliasin and T. R. Blimin. for respondent No. I.
The Judgment of the Court was delivered by
Sarkar, C.J. This is an appeal by the State of Jammu and· R
Kashmir, G. M. Sadiq. Chief MinL~ter of that State and D. P.
Dhar, its Home Minister. The appeal is rontested by respondent
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No. 1, Bakshi Ghulam Mohammad. The other respondent, N.
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Rajagopala Ayyangar, a retired Judge of this Court, has not
appeared in this Court or in the court below. These are the
parties to the proceedings before us.
After the accession of the State of Jammu and Kashmir to
India in 1947, a responsible Government was set up there under
the Prime Ministership of Shiekh Mohammad Abdulla. Bakshi
Ghulam Muhammad was the Deputy Prime Minister in that
Government and G. M. Sadiq was also in the Cabinet. In 1953
Sheikh Mohammad Abdulla was dismissed from office and a new
Government was formed with Bakshi Ghulam Mohammad as the
Prime Minister and G. M. Sadiq and D. P. Dhar were included in
the Cabinet. On January 26, 1957, a new Constitution was framed
for Jammu & Kashmir. In the first elections held under the Constitution, a party called the National Conference got the majority
of votes. Bakshi Ghulam Mohammad and Sadiq were members
of this party. A Ministry was then formed with Bakshi Ghulam
Mohammad as the Prime Minister. It appears that G. M. Sadiq
left the party sometime after 1957 and re-joined it along with D. P.
Dhar in December 1960 and they were taken into the Cabinet.
The next General Elections were held in 1962. Again, the National
Conference Party came into power. In the Government that was
formed, Bakshi Ghulam Mohammad became the Prime Minister
and G. M. Sadiq and D. P. Dhar were taken in the Ministry. In
September 1963, Bakshi Ghulam Mohammad resigned from the
Ministry under what is called the Kamraj Plan and Shamsuddin
became the Prime Minister in his place. It will be noticed that
Bakshi Ghulam Mohammad was the Deputy Prime Minister of the
State from 1947 to 1953 and its Prime Minister from 1953 to 1963.
So he held these offices, one after the other, for a total period of
about sixteen years.
In February 1964, Shamsuddin left office and a new Government was formed with G. M. Sadiq as the Prime Minister. It is
said that shortly thereafter, political rivalry between him and
Bakshi Ghulam Mohammad started. In August 1964, a notice was
issued fixing a session of the Legislature of the State in the following September. According to Bakshi Ghulam Mohammad, thereafter, some of the legislators wanted to bring in vote of no-confidence against G. M. Sadiq's Ministry and by September 21, 1964
the no-confidence motion had obtained the support of the majority
of members of the Assembly. On September 22, 1964, at 5 o'clock
in the morning, Bakshi Ghulam Mohammad and some of his
supporters were arrested under the Defence of India Rules.
At
8.30 a.m. on the same day, the notice of the motion of no-confidence with the signatures of some members was handed over to
the Secretary of the Legislative Assembly. G. M. Sadiq challenges
the genuineness of the signatures on the notice of the motion and
also denies that it had the support of a majority of the Assembly.
At 9 a.m. Lhe Legislative Assembly which was to meet on that day,
IUPRlllll COURT REPORTS
(1966) SUPP. 8.C.!t,
was prorogued by the Speaker under the directions of the Sadar-iA
Riyasat, the constitutional head of the State. Sometime in November 1964, a petition for a writ of habeas corpus for the release of
Bakshi Ghulam Mohammad was presented to the High Court of
Jammu and Kashmir. On December 15, 1964, before the petition
could be heard and decided, Bakshi Ghulam Mohammad was released from arrest by the State Government. On January 30, 1965,
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·a Notification was issued by the State Government appointing a
Commission of Inquiry constituted by N. Rajagopala Ayyangar
to enquire into (!) the nature and extent of the assets and pecuniary
resources of Bakshi Ghulam Mohammad and the members of his
family and other relativeS mentioned in the first Schedule to the
Order, in October 1947 and
in October 1963; and (ii) whether
during this period, Bakshi Ghulam Mohammad and
the others
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mentioned in the Schedule had obtained any assets and pecuniary
resources or advantages by Bakshi Ghulam Mohammad abusin2
the official positions held by him or by the aforesaid people set out
in the first Schedule by exploiting that position with his knowledge,
consent and connivance. The Notification provided that in making
the inquiry under head (ii) the Commission would examine only
the allegations set out in the second Schedule to it. It is this NotiD
fication that has given rise to the present proceedings.
The Commission held certain sittings between February 1965
and August 1965 in which Bakshi Ghulam Mohammad took part.
On September I, 1965, Bakshi Ghulam Mohammad moved the
High Court of Jammu and Kashmir uneer ss. 103 and 104 of the
Constitution of Jammu and Kashmir, which correspond to Arts.
226 and 227 of the Indian Constitution, for a \~Tit striking down
the Notific:ilion and quashing the proceedings of the Commission
taken till then and for certain other reliefs to which it is not necessary to refer. The petition was heard by a Bench of three learned
Judges of the High Court. The High Court allowed the petition,
set aside the Notification and quashed the proceedings of the Commission. This appeal is against the judgment of the High Court. In
the Jligh Court, eight grounds had been advanced in support of
the petition. three of which were rejected but the rest were accepted, some unanimously and some by the majority of the learned
Judges. They have however not all been pressed in this Court.
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The Notification had been issued under the Jammu & Kashmir
Commission of Inquiry Act. 1962. The first point taken was that
the Notification was not justified by the Act because under the
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Jammu & Kashmir Constitution. a Minister was responsible for
his acts only to the Legislature and no action could
be
taken
against him except for criminal and tortious acts in the ordinary
courts of law. unless the Legislature by a resolution demanded it.
The substance or this contention is that an inouiry cannot be directed under the Act into the actions of a Minister except at the
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instance of the Legislature, it cannot be directed by an order of
the Government. This contention is based on s. 37 of the Jammu
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J. & I'.. STATE v. BAKSHI (S·irkar, c. J.)
405
& Kashmir Constitution. That section states that the Council of
Ministers shall be collectively responsible to the Legislative Assembly. It is contended that this implies that in no other way is a
Minister responsible for anything that he does when in office. It
is also said that that is the convention in Britain and it has been
adopted in the State of Jammu & Kashmir.
We confess to a certain amount of difficulty in appreciating
this argument. The point about the British convention need not
detain us. It has not been shown that any such convention, even
if it exists in England, as to which we say nothing, has been adopted in the State of Jammu & Kashmir. The Jammu & Kashmir
Constitution is a written document and we can only be guided by
its provisions. It is said that s. 37 indicates that the British convention was adopted by the State of Jammu & Kashmir. We are unable
to agree with this view. Section 37 talks of collective responsibility
of Ministers to the Legislative Assembly. That only means that
the Council of Ministers will have to stand or fall together, every
member being resp0nsible for the action of any other. The emphasis is on collective responsibility as distinguished from individual responsibility. The only way that a legislature can effectively
enforce this responsibility of the Council of Ministers to it is by
voting it out of office. Furthermore, this responsibility is of the
Council of Ministers. Bakshi Ghulam Mohammad did not, at the
date of the Notification, belong to that Council. He did not on
that date owe any responsibility to the Legislature under s.
37.
That section has no application to this case. Again s. 3 of the Inquiry Act states, "The Government may ......... and shall ........ .if
a resolution in this behalf is passed by the Jam mu & Kashmir State
Legislative Assembly or the Jammu & Kashmir Legislative Council by notification ......... appoint a Commission of Inquiry". It
would, therefore, appear that the Act gave power to the Government to set up a Commission and also to both the Houses of the
Legislature to require a Commission to be set up. It is important
to note that even the Legislative Council has a right to get a Commission appointed though s. 37 of the Constitution does not say
anything about the responsibility of the Ministers to that Council.
The Act was passed by the State Legislature consisting of both the
Houses. It would show that the Legislature did not consider that
there was any convention or anything in s. 37 which prevented a
Commission of Inquiry being set up under the Act at the instance
of the Government or the Legislative Council. The High Court
had rejected this contention and we think that it did so rightly.
The next point urged in support of the petition was that the
Act permitted a Commission to be set up for making an inquiry
into a definite matter of public importance and the matters which
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the Commission had been set up to inquire into were not such.
This contention found favour with all the learned Judges of the
High Court. We are, however, unable to accept it. It is true that
8UPRKlll: COURT 1lEPORTS
(1966) 8Ul'P, 8.C..11..
a Commission can be set up only to inquire into a definite matter
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of public importance. But we think that the matters into which
the Commission was asked to inquire were such matters. The first
inquiry was as to the assets possessed by Bakshi Ghulam Mohammad and the other persons mentioned in the Notification, in October 1947 and in October 1963 and the second was whether during
this period being the sixteen years when he held office as Prime
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Minister and Deputy Prime Minister. he and the other persons
named had obtained any asset' or pecuniary advantage by abuse
of his official position or by that position being exploited by the
others with his consent, knowledge or connivance, this
inquiry
being confined only to the instances set out in the second Schedule
to the Notification. That Schedule contains 38 instances, the first
of which. in substance, repeats the second head of inquiry earlier C
mentioned. The other items refer to individual instances of people
being made to part with property under pressure brought upon
them by abuse of official position and of public money being misappropriated. At the end of this Schedule, there is a note stating
that the gravamen of the charge was that Bakshi Ghulam Mohammad abused his official position and the other persons named, exploited that position with his consent, knowledge or connivance
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in committing the acts whereby they acquired vast wealth. The
inquiry was, therefore, into the assets possessed by Bakshi Ghulam
Mohammad and the persons named, respectively in October 1947
and in October 1963 and to find out whether they had during this
period acquired wealth by the several acts mentioned in the second
Schedule by abuse or exploitation of Bakshi Ghulam Mohammad's
official position.
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The first question is, whether these arc matters of public importance. Two of the learned Judges held that they were not and
the third took the contrary view. This was put on two grounds.
First, it was said that these matters were not of public importance
because they had to be so at the date of the Notification and they
were not so on that date as Bakshi Ghulam Mohammad did not
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then hold any oflice in the Government. It was next said that there
was no evidence of p!lblic agitation in respect of the conduct complained of and this showed that they were not matters of public
importance. We do not think that either of these grounds leads
to the view that the matters were not of public importance. As
regards the first. it is difficult to imagine how a Commission can
be set up by a Council of Ministers to inquire into the acts of its
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head, the Prime Minister. while he is in office. It certainly would
be a most unusual thing to happen. If the rest of the Council of
Ministers resolves to have any inquiry, the Prime Minister can be
expected to ask for their resignation. In any case, he would himself
go out. If he takes the first course. then no Commission would be
set up for the Ministers wanting the inquiry would have gone. If
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he went out himself, then the Commission would be set up to
inquire into the acts of a person who was no longer in office and
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for that reason, if the learned Judges of the High Court were right,
into matters which were not of public importance.
The result
would be that the acts of a Prime Minister could never be inquired
into under the Act. We find it extremely difficult to accept that
view.
These learned Judges of the High Court expressed the view
that the acts of Bakshi
Ghulam
Mohammad would have been
acts of public importance if he was in office but they ceased to
be so as he was out of office when the Notification was issued. In
taking this view, they appear to have based themselves on the
observation made by this Court in Ram Krishan Dalmia v. Shri
Justice S. R. Tendolkar(') that "the conduct of an individual may
assume such a dangerous proportion and may so prejudicially affect
or threaten to affect the public we1I-being as to make such conduct
a definite matter of public importance, urgently calling for a full
inquiry". The learned Judges felt
that since Bakshi Ghulam
Mohammad was out of office, he had become innocuous; apparently, it was felt that he could no longer threaten the public wellbeing by his acts and so was outside the observation in Dalmia's
case. We are clear in our mind that this is a misreading of this
Court's observation. This Court, as the learned Judges themselves
noticed, was not laying down an exhaustive definition of matters
of public importance. What is to be inquired into in any case are
necessarily past acts and it is because they have already affected
the public well-being or their effect might do so, that they became
matters of public importance. It is irrelevant whether the person
who committed those ac!s is still in power to be able to repeat them.
The inquiry need not necessarily be into his capacity to do again
what he has already done and it may well be into what he has
done. The fact that Bakshi Ghulam Mohammad is no longer in
office does not affect he question whether his acts already done
constitute matters of public importance. If once it is admitted, as it
was done before us, that if he had been in office his acts would
have been matters of public importance, that would be ackno\I(
!edging that his acts were of this character. His resignation from
office cannot change that character. A Minister, of course. holds
a public office. His acts are necessarily public acts if they arise out
of his office. If they are grave enough, they would be matters of
public importance. When it is alleged that a Minister has acquired
vast wealth for himself, his relations and friends, as is done here,
by abuse of his official position, there can be no question that the
matter is of public importance.
It was said that the object of inquiry was to collect material
for the prosecution of Bakshi Ghulam Mohammad and, therefore.
the matters to be inquired into were not of public importance.
This contention is, in our view. fallacious. It is of public importance that public men failing in their duty should be called upon
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L1S5SCI-.. 28
408
StJPREl!E COURT REPORT!
(1966] SL,.P. S.C.R.
to face the consequences. It is certainly a matter of importance
to the public that lapses on the part of the Ministers should be
exposed. The cleanliness of public life in which the public should
be vitally interested, must be a matter of public importance. The
people are entitled to know whether they have entrusted their
affairs to an unworthy man. It is said that the Notification did not
mention anything about the steps to be taken to prevent recurrence
of the lapses in future. But that it could not do. Before the facts
were found steps could not be thought of, for the steps had to suit
the facts. The inquiry proposed in this case will, in the course of
finding out the lapses alleged, find out the ~rocess as to how they
occurred and it is only after the process is known that steps can
be devised to meet them.
It was also contended that the inquiry was into allegations
of misconduct against Bakshi Ghulam Mohammad and an inquiry
into allegations was not contemplated by the Inquiry Act. We are
wholly unable to agree. An inquiry usually is into a question. That
question may arise on allegations made. Dalmia's case(') dealt with
an inquiry ordered at least in part into allegations made against
people in charge of a big mercantile enterprise. Allegations may
very well raise questions of great public importance. Suppose it is
alleged that people in a city are suffering from ill-health and that
that is due to the contaminated water supplied by the city administration. It cannot be said that these allegations about the existence of poor health and its causes are not matters of grave public
importance. They would be so even if it was found that the people's health was not poor and the water was not contaminated. It
cannot also be said that allegations can never be definite. They
can be as definite as any existing concrete matter. It must depend
on what the allegation is.
Then as to the question whether the allegations against Bakshi
Ghulam Mohammad were not matters of public importance because there was no public agitation over them. The Notification
itself and the affidavits filed in this case on behalf of the appellants
in fact state that there had been allegations made by the public
against Bakshi Ghulam Mohammad that he had amassed a large
fortune by the misuse of his office. But it was said that there was
no proof that the allegations had actually been made.
Whether
there was proof would depend on whether the statements in the
Notification and the affidavits were accepted or not. We are. however, unable to agree that a matter cannot be of public importance
unless there was public agitation over it. Public may not be aware
of the gravity of the situation. They may not know the facts.
Some members of the public may be aware of individual cases
but the entire public may not know all of them. There may have
been influences working to prevent public agitation. Again, whe-
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409
ther a matter is of public importance or not has to be decided
essentially from its intrinsic nature. If a matter is intrinsically of
public importance, it does not cease to be so because the public
did not agitate over it. Take this case. Suppose the Government
sets up a Commission to inquire into the mineral wealth in our
country. The public are not likely to agitate over this matter for
they would not know about the mineral wealth at all. Can it be
said that the inquiry does nC>t relate to a matter of public importance because they did not agitate over it? The answer must plainly be in the negative. This would be so whether there were in fact
minerals or not. Considering the a!Iegations contained in the Notification by themselves, we think for the reasons earlier mentioned,
that they constitute matters of public importance even if there was
no public agitation over them. It was said that G. M. Sadiq, D. P.
Dhar and various other people had praised the administration of
Bakshi Ghulam Mohammad. That they no doubt did. But these
were speeches made in support of party politics. They might again
have been made without knowledge of full facts. They cannot, in
any event, turn a matter of public importance into one not of that
character.
It was then pointed out that the Notification only mentioned
that the matters were of public importance but did not say that
they were definite matters of public importance. The Act, as we
have earlier pointed out, requires that the matters to be inquired
into shall be definite matters of public importance. But this omission of the word "definite" in the Notification does not, in our
E
th
op'nion, make any difference. A Court can decide whether
e
matters to be inquired into are definite matters of public impor·
tance. 'Definite' in this connection means something which is not
vague. One of the learned J u.dges of the High Court held that the
matters set out in the second Schedule were vague as some of the
instances did not give any date or year. He also said that the note
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at the end of the second Schedule, to which we have earlier referred, added to the vagueness. We are unable to accede to this view.
What the learned Judge had in mind was apparently the particulars of the acts. In most cases, the acts are identifiable from the
particulars given in the second Schedule in respect of them. Further, it is obvious that they had to be identified at the hearing
and could not be proved nor any notice taken of them unless that
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was done. It does not appear to have been contended before the
Commission that there was any matter not so identifiable. Neither
do we think that the note drawing attention to the gravamen of
the charges at the end of the second schedule indicates any indefiniteness. In most of the allegations it had been expressly stated that
the act was done by the misuse of Bakshi Ghulam Mohammad's
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official position and by his permitting others to exploit that-it is
this which made the matters, matters of public importance-and
it was for greater safety that the note was appended so that no
L/S5SOI-28( a I
410
~CPREKY. COPRT RF.PORTS
[J9e6j
~L"PP. 8.C.R.
doubt was left as to lhe gravamen of the charge in each of
allegations made.
The next point against the validitv of the Notification
based on s. I 0 of the Act which is in these terms: -
"I 0. I I) If at any stage of the inquiry the Commission considers it necessary to inquire into -the conduct
of any person or is of opinion that the reputation of any
person is likely to be prejudicially effected by the inquiry,
the Commission shall give to that person a reasonable
opporlunity of being heard in the inquiry and producing
evidence in his defence;
Provided that nothing in this sub-section shall apply
when the credit of a wilness is being impeached.
(2) The Government, every
person
referred to in
sub-section (I) and with the permission of the Commission. any other person whose evidence is recorded by the
Commission: -
(a) may cross·cxamine any pc1son appearing before
the
was
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the Commission other than a person produced
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by it or him as a witness.
lb) may address the Commis,ion.
(3)
It was contended that 1t showed that an inquiry may be made
under the Act into the conduct of a person only incidentally, that
is to say, it can be made only when that becomes necessary in
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connection with an inquiry into something else. It was, therefore,
contended that the present inquiry which was directly into the
conduct of Bakshi Ghulam Mohammac1 was outside the scope
of the Acl. It was also said that s. IO gives a statutory form to the
rules of natural justice and provides for the application of such
rules only in the case when a person's conduct comes up for inquiry by the Commission incidentally. It was then said that the
F
Act could not have conlemplatcd an inquiry direclly into the conduct of an individual since ii did not provide specifically that he
should have the right to be he:ud. the right h> cross-examine and
the right 10 lead evidence which were given by s. I 0 to the person
whose conduct came to be inquired into incidentally. We arc unable to accept this view of s. 10. Section 3 which permits a Commission of Inquiry 10 be appointed is wide enough to cover an
G
inquiry into lhe conduct of any individual. It could nol be a natural reading of the Act tn cut down the scope of s. 3 by an implication drawn from s. 10. We also 1hink 1hat this argument is illfounded for we are unable to agree th al s. I 0 docs not apply to
a person whose conduct comes up direclly for inquiry before a
Commission set up under s. :1.
We find nothing in the words of
H
s. IO to justify !hat view. If a Commission is set up to inquire
dircclly into the conduct of a person. the Commission must find
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411
it necessary to inquire into that conduct and such a person would,
therefore, be one covered by s. 10. It would be strange indeed if
the Act provided for rights of a person whose conduct incidentally
came to be enquired into but did not do so in the case of persons
whose conduct has directly to be inquired into under the order
setting up the Commission. It would be equally strange if the Act
contemplated the conduct of a person being inquired into incidentally and not directly. What can be done indirectly should obviously have been considered capable of being done directly. We find
no justification for accepting the reading of the Act which learned
counsel for Bakshi Ghulam Mohammad suggests.
The next attack on the Notification was that it had been
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issued ma/a fide.
One of the learned Judges of the High Court
expressly rejected this contention and the others also seem to have
been of the same view for they did not accept it. We find no reason
to accept it either. In that view of the matter, we consider it unnecessary to discuss this aspect of the case in great detail. We have
set out the broad events of the case and it is on them that the case
of ma/a fide is based. It is not in dispute that for some time past
D
there was political rivalry between Bakshi Ghulam Mohammad
and G. M. Sadiq. It was also said that there was personal animosity because G. M. S0 :!iq wanted to advance the interest of his
relatives and followers by ousting persons belonging to Bakshi
Ghulam Mohammad's group in various fields. This allegation of
personal animosity cannot be said to have been established. It is
really on the political rivalry and the events happening since SepE
!ember 21, 1964 that the allegation of male fide is founded.
It
was said that the steps taken since the arrest of Bakshi Ghulam
Mohammad down to the setting up of the Commission of Inquiry
were all taken with the intention of driving him out of the political
life so that G. M. Sadiq would have no rival as a political leader.
First, as to the arrest. The case of Bakshi Ghulam Mohammad was
that the arrest was mala fide. On the other side, it was said that
F
since about July 1964 various allegations of abuse of power by
Bakshi Ghulam Mohammad some of which formed the subject
matter of inquiry, had come to the notice of the Government and
thereupon investigations were started by the Criminal Investigation Department at the instance of the Government. In order to
stop the investigation Bakshi Ghulam Mohammad and his followers
started rowdyism and other form of breaches of law and order
G
endangering public safety and maintenance of public order. It was
pointed out that the situation in Kashmir had not been easy for
some time past due to the hostile intentions of Pakistan and China
and breach of law and order added to the seriousness of the position. It was said that for these reasons Bakshi Ghulam Mohammad
had to be arrested and detained under the Defence of India Rules.
H
It was said on behalf of Bakshi Ghulam Mohammad that prior to
the arrest, a no confidence motion had been sponsored and had
actually gathered in volume and the arrest was made to stultify
8UPREl4E COURT REPORTS
[1966) Sl!PP. 8.0.R.
it. What support the no confidence motion had we do not know.
It would appear however that the Criminal Investigation Department had been making inquiries against Bakshi Ghulam Mohammad's acts for some time past and the situation in Kashmir was
inflammable. In those circumstances, it cannot be said that Bakshi
Ghulam Mohammad's arrest was ma/a fide.
He was no doubt
released from arrest after a petition had been moved for his release
and before the petition was heard. It was said that he was released
because the Government found that the petition was bound to
succeed. We have no material before us on which we can say that
the petition was bound to succeed. On behalf of G. M. Sadiq and
D. P. Dhar it was said that he was released because of ill-health.
This does not appear to have been denied. It was also said on
behalf ol. G. M. Sadiq that the investigation having been completed there was no cause for Bakshi Ghulam Mohammad to instigate
breaches of law and order and therefore it was not necessaril to
keep him in detention any longer. On the evidence before us, we
are unable to say that the case made by G. M. Sadiq cannot be
accepted. As to the prorogation of the Assembly, it is said by the
appellants that it was necessary because it was apprehended that
if the Assembly met, there might have been trouble inside the
House created by Bakshi Ghulam Mohammad's followers
who
resented the arrest. On the materials before us, we arc unable to
say that this apprehension was pretended. It was also said by the
appellants that the prorogation had been decided upon before the
arrest of Bakshi Ghulam Mohammad but the order could not be
passed because the Sadar-i-Riyasat was out of Srinagar from before
September 15, 1964 when both the arrest and prorogation had been
decided upon and did not return there till some time on September
21, 1964. The fact that the Sadar-i-Riyasal returned on that date
is not denied. As we have said, the arrest and the prorogation took
place on the next day, that is, September 22, 1964. Bakshi Ghulam
Mohammad was released on December 15, 1964 and the Notification challenged was issued on January 30, 1965. On these facts,
we are unable to hold that Bakshi Ghulam Mohammad has been
able to establish that the inquiry had been set up ma/a fide owing
to political rivalry.
It has been said on behalf of the appellants that there could
A
B
c
D
p
be no politi::al rivalry because, as appears from Bakshi Ghulam
Mohammau s own affidavit, he had declared his intention to retire
from politks. On behalf of Bakshi Ghulam Mohammad it was
(l
stated that G. M. Sadiq had made a statement that he would be
released after a Commission of Inquiry was set up and this would
show that the detention was ma/a fide and that would indicate that
the Notification had also been issued ma/a fide.
That statement
is not before us. On behalf of G. M. Sadiq it was said that such a
statement had not been made and what had been said was B
that he would be released after the completion of investigation by the Criminal Investigation Department as thereafter, there
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J. & K. STATE v. BAKSHI (&al'/wr, c. J.)
413
will be no occasion for Bakshi Ghulam Mohammad to disturb the
public peace and safety. It was also said that it had been mentioned that after the completion of the investigation, the Commission
of Inquiry would be set up.
This is not denied. It however
does not make the arrest mala fide.
It was further said by
Bakshi Ghulam Mohammad that the statement showed that the
Commission was set up to prevent him from
disturbing public
safety and law and order and that, therefore, it was outside the
scope of the Inquiry Act. This was denied on behalf of G. M.
Sadiq. In the absence of the statement, it is impossible for us to
say which is the correct version. Another point taken was that the
affidavits filed on behalf of the appellants showed that the Government were satisfied about the correctness of the allegations into
which the inquiry was directed. It was contended that since the
inquiry is for finding facts, if the Government were already satisfied about them, there was no need for further inquiry. This contention has no force at all. What the affidavit really said was that
the Government were prima fade satisfied. They had to be so
before they could honestly set up the Commission to make the
inquiry. It was said on behalf of G. M. Sadiq that before setting
up the Commission the Government had investigated into the facts
through the Criminal Investigation Department and if the Government's intention was ma'.1 fide, they could have started criminal
proceedings and ruined the political life of Bakshi Ghulam Mohammad just as well thereby and kept him busy and out of politics for
a long time. It was pointed out that this might have resulted in
serious consequences for Bakshi Ghulam Mohammad which the
Commission of Inquiry would not. It was also pointed out that the
Commissioner appointed was a retired Judge of the Supreme
Court of India. All this, it was said, would indicate that the
action had not been prompted by malice. We cannot say that
these contentions of the appellants have no force.
The next ground of attack on the Notification was based on
F
Art. 14. It was said that most of the matters into which the Commission had been directed to inquire formed the subject matters
of Cabinet decisions. It was pointed out that since such matters
are confidential and no one is allowed to divulge in what way
the members of the Cabinet voted on them, it must be held that
they were all equally responsible for the acts sanctioned.
That
being so, it was contended that by picking Bakshi Ghulam
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Mohar.1mad out of the entire Cabinet for the purpose of the Inquiry the Government had discriminated against him in a hostile
way. It was contended that the Notification must be set aside on
that ground. We find this contention untenable. The inquiry is
in respect of wealth acquired by Bakshi Ghulam Mohammad and
his friends and relatives by misuse of his official position. It would
H
be strange if all the members of the Cabinet voluntarily abused
their office for putting money into the pockets of Bakshi Ghulam
Mohammad and his friends.