Post-Protest Government Committees: Mandates, Transparency, and Implementation Accountability in Public Administration

Post-Protest Government Committees: Mandates, Transparency, and Implementation Accountability in Public Administration

Author – Saachi Srivastava

 

Abstract

Protests are very crucial instruments for democratic feedback, leading to the creation of committees, inquiry commissions, and expert bodies by the state. Although these bodies are created in response to the protests to reduce social tension, discover truth, and provide for administrative and legislative reforms, their success largely relies upon their legal empowerment, procedure, and implementation process. The present paper deals with the public administration and law associated with the establishment of committees following mass protests in India. It discusses the legal regime regarding such committees as per the Act of the Commissions of Inquiry Act, 1952, along with modern criminal procedure law in light of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Bharatiya Nyaya Sanhita, 2023 (BNS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA). Analysis of significant cases of judicial interference, including In Re: Destruction of Public & Private Properties (2009) and Anita Thakur v. Government of J&K (2016) will help in distinguishing between peaceful assembly and public disturbance under Article 19(1)(a)/(b). The paper analyses the rights and obligations of the protesters, the state authorities, media, and third parties, and also considers the structural weaknesses like lack of binding recommendations, delays in report submission, and selective implementation by the executive.

 

Introduction

Protest is an essential tool in the process of collective representation, addressing grievances, and asserting the constitution in democracies. In cases when popular anger takes the form of protests, blockades, or mass movements, the state usually resorts to a two-fold response process – enforcing public order followed by reconciliatory mechanisms. One important element of the conciliation process is a post-protest committee, panel or commission of inquiry.

The history of the committee includes statutory institutions set up under the Commissions of Inquiry Act, 1952, as well as administrative expert institutions created by executive notifications. Some well-known examples are the Justice J.S. Verma Committee, set up after protests over 2012 gang rape of a girl in Delhi with a view to revisiting criminal law and the judicial/expert committees appointed in accordance with the Supreme Court’s directives after violent protests, like the Justice K.T. Thomas Committee on destruction of public property.

However, in terms of public administration and constitutional law, post-protest committees are in a difficult place. In what would seem to be mechanisms designed for the purpose of being impartial, fact finding, and policymaking in order to satisfy the demands of democracy for accountability, such committees could very well function as instruments of administrative delay, temper public enthusiasm, or even protect the government from liability. The fundamental difficulty lies in three areas:

1. Definition of mandate: Clarifying the difference between fact-finding and policy change.
2. Openness of process: Availability of hearings, evidence, and findings to the public.
3. Implementation: Transforming recommendations into administrative policy or legislation.

This paper will explore the issues of the legal, judicial, and public administration approach to government committees after protests in India.

 

Legal Provisions

The formation, operation, and implementation of post-protest committees fall at the intersection of constitutional law, administrative law, legislation, and criminal process.

 

Fundamental Rights and Reasonable Restrictions

The right to peaceably assemble and unarmed is enshrined in the Indian Constitution, Article 19(1)(b), together with the right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution of India. The rights mentioned above may be reasonably restricted in accordance with Article 19(2) and Article 19(3) on the grounds of sovereignty and integrity of India, public order, and morality. The task of the post-protest committees is to determine the infringement of these fundamental rights or the reasonability of the use of force considering the public order.

 

Legislative Backing: Commissions of Inquiry Act, 1952

As per Section 3 of the Commissions of Inquiry Act, 1952, “The appropriate Government may, for the purposes of enquiring into any definite matter of public importance” appoint a Commission of Inquiry. As per the provisions of the Act, some civil court powers of the commission are bestowed upon them in accordance with the Code of Civil Procedure, 1098, which include summoning of witnesses, calling for production of documents, and examination on affidavits.

Importantly, under Section 3(4), the appointing government must place the report and Action Taken Report (ATR) of the commission before the Legislature within six months of the presentation of the report. It should be noted that the findings by virtue of this Act are only advisory. As per State of Karnataka v. Union of India (1977), the recommendation lacks judicial binding force.

 

Statutory Backing: Commissions of Inquiry Act, 1952

Section 3 of the Commissions of Inquiry Act, 1952 provides that the competent Government (Union/State) has the power to establish an Inquiry Commission for investigating any “definite matter of public importance. “The Act confers the power on the commission in respect of all procedures of a civil court under the Code of Civil Procedure, 1098 like summoning witnesses, searching for documents, and recording evidence on affidavits.

Importantly, Section 3(4) stipulates that the competent Government should place the report submitted by the commission before the Legislature along with the Action Taken Report (ATR) within six months of submission. Yet, the conclusions arrived at under the Act remain only advisory. As held in State of Karnataka v. Union of India (1977), the recommendations lack judicial force and are not enforceable in court.

 

Updated Criminal Law Framework (BNS, BNSS, and BSA)

In case of civil disturbance, use of force, and any form of property damage during protests, the post-protest committees check on the adherence of the executive branch to the criminal law. The new criminal law regime involves the following offences:

• Unlawful Assembly and Public Nuisance: As per Section 189 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the definition of unlawful assembly is provided (previously as per Section 141 IPC), and that of rioting in Section 191 BNS (previously in Section 146 IPC).
• Powers of Dispersal and Police Actions: Powers to disperse the executive magistrates and the police by use of civil force (Section 129 CrPC) are provided under Sections 148 and 149 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Preventive orders in case of apprehended danger are provided under Section 163 BNSS (Section 144 CrPC), while Section 168 BNSS talks about the police duty to prevent cognizable offences (Section 149 CrPC).
• Evidence: In regard to the requirement of making any form of video recordings or electronic recordings of any form of violent protests or misuse of power, Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides for the admissibility of electronic record (Section 65B Indian Evidence Act, 1872).

 

Specific Enactments and Tortious Liability

The Prevention of Damage to Public Property Act of 1984 (PDPPA) operates in concert with court directions in order to establish civil liability on the protesters for any damage done in mass protests.

 

Analysis Based on Issue Identification

Mandate Drift: Fact-Finding vs. Policy Delegation

An issue that is common to the field of public administration concerns the vagueness of the mandate of post-protest committees. The mandate of such committees is deliberately ambiguous for the purpose of meeting two contrasting objectives: appearing responsive to public anger and being nonchalant in regard to accountability.

• Fact-Finding Mandates: Mandates meant to uncover a concrete incident, e.g., discovering who gave orders for police firing and who decided to have a riot.
• Policy or Reform Mandates: Mandates meant to investigate administrative weaknesses and suggest legislative changes.

When the mandate includes both aspects but lacks time frames and resources, the process of administration gets stalled. By the time the findings of the committee are submitted, public attention shifts, allowing the administrative agencies to ignore the recommendations.

 

Shortcomings in Transparency of Inquiry Processes

Public confidence in committees that are set up after protests is based on transparency of procedures. However, commissions often conduct their work behind closed doors. Despite the fact that the Commissions of Inquiry Act allows for open hearings, governments use public order or national security as exceptions to conduct in camera hearings or classify the findings of the commission.

Since there is no active disclosure provided under Section 4(1)(b) of the Right to Information Act, 2005 (RTI), citizens and interested parties lack access to the findings made by the committee.

 

Implementation Accountability & The Action Taken Report (ATR) Disconnect

The most basic problem with post-protest administrative panels is the non-binding nature of the commission’s recommendations. Under Indian administrative law, a commission report is always advisory. Section 3(4) of the 1952 Act requires submission of an Action Taken Report (ATR), but there is no requirement for accepting the recommendations made by the government.

Thus, political pressure often leads to selective implementation – recommendations for punishing government officials are ignored while minor administrative changes are stressed.

 

Important Landmarks

• In Re: Destruction of Public & Private Properties v. State of Andhra Pradesh & Ors. (2009) 5 SCC 212

Following the violence and destruction of public and private property in the course of demonstrations, the Supreme Court invoked its suo motu jurisdiction and created two panels of high-level committees: the Justice K.T. Thomas Committee and the F.S. Nariman Committee.

Decision & Orders: Endorsing the committees’ recommendations, the Supreme Court formulated guidelines to address gaps in the Prevention of Damage to Public Property Act, 1984. It ordered the High Courts to create a suo motu mechanism whereby sitting or retired judges would be appointed as Claims Commissioners for assessing the damages and fixing the tortious liability on the persons committing the acts and organisers of the demonstrations on the ground of absolute liability.

Jurisprudential Implication: This case has shifted post-demonstration committee recommendations to judicial orders under Article 142 of the Constitution.

• Anita Thakur & Ors. v. Government of Jammu & Kashmir (2016) 15 SCC 525

Here, the issue was about the use of force by the police against peaceful demonstrators proceeding towards the office of the Divisional Commissioner.

Judgement: The Supreme Court of India made a distinction between peaceful protest and unlawful assembly. According to the judgement, while the right to protest is a fundamental right within the Indian Constitution, it is not an absolute right to attack anyone without being provoked.

Principle of Proportionality: The Court ruled that the application of force by the law-enforcing agencies should be strictly in accordance with the principle of proportionality. Even when there is an unlawful assembly as per Section 189 BNS (Section 141 IPC), then the use of force as per Section 148 BNSS (Section 129 CrPC) should be gradual and minimal.

• Union of India v. Mazdoor Kisan Shakti Sangathan (2018) 17 SCC 324

In relation to orders made under Section 144 CrPC (now Section 163 BNSS) at Jantar Mantar, New Delhi, the Supreme Court considered the constitutional rights of protesters under Article 19(1)(b) vis-à-vis the constitutional rights of the residents under Article 21.

Judgment: The Court held that any blanket and indefinite order banning the protest would be unconstitutional. It asked the police authorities to make administrative guidelines to balance both sets of rights.

• Himmat Lal K. Shah v. Commissioner of Police (1973) 1 SCC 227

An important ruling where the Supreme Court held that while the state had the right to regulate meetings conducted on public streets, it did not have the right to ban them arbitrarily. Regulation must be guided by objective public order criteria, setting the standard against which post-protest committees evaluate police bans.

 

Implications for Practice

The working process of post-protest committees plays an important role in public administration, policing, and civil liberties.

• For Public Administration and Accountability of Executives

Post-protest committees represent institutional structures that investigate systemic failures in policies. Yet when these recommendations are ignored or postponed, it leads to the loss of credibility of state structures. In such a situation, the cycle of unrest arises, where unsolved grievances of public administration give rise to another protest and formation of another committee but without any structural changes.

• For Police Forces

Inquiries affect police morale and protocol. The possibility of conducting a judicial inquiry after a protest pushes law enforcement bodies to use modern non-lethal crowd control equipment and make contemporaneous records (audio-visual recordings meeting Section 61 BSA requirements). On the contrary, if the committees are seen as biased, they may demoralise police force members or provide immunity to human rights violations.

• For Organisers and Civil Society

In terms of civil society, the formation of committees following protest enables such groups to demonstrate evidence of the overstepping by the executives or deficiencies in policy formulation. Nevertheless, the danger of civil liability cases based on the In Re: Destruction of Public & Private Properties case means that more control is needed over such activities.

 

Recommendations

For the post-protests committee to move away from being a mere formality into a tool of accountability, certain changes need to be made:

1. Amendment to the Commissions of Inquiry Act, 1952: Clause 3(4) of the Act needs to be amended to mandate that the report and ATR be presented before the legislature within 90 days (down from six months) or give reasons why not, in writing and in public. In cases where a commission is chaired by an incumbent or former judge of the Supreme Court or High Court, its factual findings must be presumed to be valid by statute.
2. Standard Terms of Reference (ToR): The governments should use a standard format for developing the objectives of the ToRs. This will be done in collaboration with NHRC. The ToRs must distinguish between immediate inquiries related to law enforcement actions and long-term administrative/legal changes.
3. Transparency and Open-Data Policy: All the facts, testimonials, and transcripts from the proceedings (except cases about national security) must be made available proactively through a specially designed public online portal. Proceedings being recorded or streamed online is also required, as is the authentication of the digital evidence through Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
4. Formalising an Implementation Oversight System: Each state government needs to form an Independent Implementation Oversight Cell within the Department of Public Administration or State Human Rights Commission. This cell needs to compile an annual compliance dashboard that would monitor the implementation of the committee recommendations department-wise.
5. Legal Framework for Compensation: Legislation needs to be passed by the states incorporating all the directions provided by the Thomas Committee in the Supreme Court. The framework needs to set out the evidentiary standard required to establish a direct link between protestors and property damage.

 

Conclusion

Post-protest government committees are key devices for democratic public administration. If created with definite charters, conducted openly, and enforced by enforcement devices, these committees provide a way of communicating the power of the state with citizens’ complaints. However, if employed as administrative devices that avoid any kind of responsibility, they undermine the public faith in public institutions. To ensure the constitutional equilibrium between the right to peacefully assemble stated in Article 19(1)(b) and public order maintenance, post-protest inquiries need to evolve from advisory boards to accountable administrative tools. Using statutory deadlines, publicly available evidence, and compliance structures provides for such an evolution of post-protest inquiries.