The Court established that in a public interest litigation, a writ of mandamus cannot be issued to direct the Government to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952 or to appoint the CBI for an investigation under the Delhi Special Police Establishment Act, 1946.

Jagannadha Rao, C.J.

These three writ petitions can be disposed of together. In OP 14660 of 1992, the petitioner initially prayed for the issue of a Writ of Mandamus directing the Chief Minister of Kerala (third respondent) to order a CBI investigation into the alleged spirit smuggling into Kerala recently through unauthorised channels and to find out the circumstances which led to the alleged failure of the State Government to procure or import 25 lakh litres of rectified spirit as per the contract entered and also to direct the Director, CBI, New Delhi (fourth respondent) to take up investigation. A further relief is sought to direct the CBI to investigate the alleged role played by the Minister for Excise, State of Kerala (first respondent) and the former Chief Secretary to the State Government (second respondent) to scuttle the contract to import 25 lakh litres of rectified spirit during the last Onam Festival and also to direct the Chief Minister (third respondent) to divest off Excise Portfolio from the first respondent till the completion of the investigation for a proper and fair investigation into the allegations. An amendment was made subsequently seeking appointment of a Commission of Inquiry under the Commissions of Inquiry Act, 1952 (hereinafter referred to as "the act" ).

2. In O.P.No.15231 of 1992 and O.P.No.15766 of 1992, respective petitioners have sought similar directions for an inquiry by the CBI.

3. Respondents have filed counter affidavits stating that the petitioners have no locus standi and, in any event, this Court cannot issue a writ of mandamus compelling the Central or State Government to direct an inquiry by the CBI or to appoint a Commission of Inquiry into the allegations against the Excise Minister and others.

4. The following points arise for consideration in these Writ Petitions:

(1) Whether in a public interest litigation the High Court can issue a writ of mandamus under Art.226 of the Constitution of India, to the Government to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952?

(2) Whether in a public interest litigation the High Court can issue a writ of mandamus to the Government to appoint the Central Bureau of Investigation to conduct an investigation under the Delhi Special Police Establishment Act, 1946?

5. PointNod: Weshall first consider the point as it arises under the Commissions of Inquiry Act, 1952. The Act was amended in 1971,1986,1988 and 1990. S.3 of the Act, (as amended) reads as follows:

"S.3. Appointment of Commission: - (1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly: Provided" (emphasis supplied)

6. The provisions of S.3(1) of the Act have come up for consideration before the Supreme Court in several cases. It has been held that the first part of S.3(1) which uses the word 'may' confers a discretion on the Government to appoint a Commission or not. Government has various methods of getting at facts and it is for the Government to consider whether it will employ one or the other methods to get at the said facts. On getting at the facts, the Government can use the same for taking appropriate legislative or executive measures. The findings and recommendations arrived at by the Commission are of great importance to the Government in order to make up its mind, as to what legislative or administrative measures should be adopted to eradicate the evil found or implement the beneficial objects it has in view (Ram Krishna Dalmia v. Justice S. R. Tendolk