It is for Commission to determine its procedure and decide whom it should summon as a witness, says Justice Jain

Gujarat Chief Minister Narendra Modi got a breather from the Supreme Court on Monday — it refused to direct the Justice Nanavati Commission to summon him for questioning in connection with the 2002 communal riots.

A Bench of Justices D.K. Jain and Anil R. Dave dismissed as withdrawn a special leave petition (SLP) filed by Amrish N. Patel, representing the Jan Sangarsh Manch, after indicating that it would not entertain it.

On March 23, the Bench recalled the notices it had issued to the Commission and the Gujarat government on March 19 after it was found that the subject of the petitions was not related to the issues pertaining to the Commission. The Bench had posted the SLP for further hearing on Monday.

Mr. Gonsalves, appearing for the petitioner, insisted that the Commission summon Mr. Modi as the role of Chief Minister fell within the ambit of its terms of reference. Since the government itself had amended the terms of reference for inquiry into the role and conduct of the Chief Minister and/or any Minister, it was necessary to summon Mr. Modi, he said, pointing out that the Commission was about to complete the probe without examining him.

Justice Jain asked counsel: “Tell us under which law this court can direct the commission to probe the role of somebody. It is for the Commission to determine its own procedure and decide whom it should summon as a witness and what probe it should conduct.”

When Mr. Gonsalves said the court could interfere if the Commission acted arbitrarily, Justice Jain said: “Probe is not decided on the basis of personalities. If, after the submission of the final report, you find it [the report] …arbitrary, then we can understand. But you are asking us to judge a report [of the commission] even before it is submitted.” How the court could interfere to ensure that someone was made a witness and conclude that the Commission was proceeding arbitrarily when it had not submitted its report, he asked.

“The Commission has not closed the inquiry. We can't judge the correctness of the order till the final report is submitted. If the court starts interfering at every stage in the … Commission's functioning, no …commission can submit its report,” he said.

When counsel said the Commission was conducting the probe for 10 years, Justice Jain said: “We have instances in which it has taken 15 years for [an] inquiry commission to complete a probe. Once the final report is submitted, it is for the Legislature or Parliament to accept or reject the recommendations. What happened to [the] reports of high-profile inquiry commissions? How many buckets are full with reports of inquiry commissions?”

“We hear about judicial overreach. If we start monitoring the functioning of the inquiry commissions, will it not be judicial overreach” he asked.

When Mr. Gonsalves pointed out that the court had intervened earlier, Justice Jain said: “It [the 2002 riots] is an unfortunate event, very difficult to erase from our mind. We have re-opened the cases. Can a judicial body constituted under a statute be subjected to judicial review is the question. In this case, if we interfere, it will be a clear case of judicial overreach.”