Exercise of statutory discretion by Government has to be in public interest.

The mighty says to the meek that you cannot command me to act; I shall act if f like, I shall not act if I choose not to act. The meek says that I possess the strength of law to give you the command; the law, which is no respector of person and which does not allow anybody to rise so high as to be above it.

State Of Orissa vs Janamohan Das, AIR 1993 Ori 180

Discretion of the Government:

Cuttack was calm when the day dawned. Who had known that a “disaster of unprecedented proportions” was going to strike and disturb placid waters of the Mahanadi and Katha-jodi? But it took place. A man-made tragedy took a great toll 124 deaths, according to the State), and it was our well known hooch tragedy. Not that the people of this State have not know a about such tragedies taking place in the past, but then, it was the great dimension of the tragedy which stunned the people, so much so that they almost lost faith in all instrumentalities of the State. People started thinking whether they had been left to the wolves to be killed. The question with which we are seized is about the responsibility of the State to find out why spurious liquor took the toll of 124 lives, and what steps are required to be taken to stop recurrence of such a heinous crime, at the root of which lies the naked greed for money and nothing else.

Ours is a “socialist democratic republic” and its people have been promised by the Constitution a right to live and not to be killed except in accordance with the procedure established by law. Do the instrumentalities of the State owe no obligation to enforce Article 21 of the Constitution? But then, how can they do so unless they know what they are required to do in this regard? And, how would they know about it unless they find out who are the evil-doers and how they conjointly act to fulfil their evil designs ? To inform the mind of the Government in this regard, should it not try to find out all the relevant facts to enable it to tailor its laws, to gear up its machinery, to plug the loop-holes and take other required steps? Why should the Government feel shy to know full facts necessary for the aforesaid purpose ? And if it feels shy, does not discharge its legal obligations, remains inactive to serve an alien purpose, can this Court not direct it to discharge its duty?

The language of the statute at hand is, however, different. Section 3 of the Commission of Enquiry Act has conferred the power to order for judicial inquiry when the need to inquire into any matter of public importance is felt. So, the question would be, if there be a definite matter of public importance, can judicial inquiry be refused ? According to us, the discretion conferred by Section 3 of the Act cannot be said to be ‘unfettered’ inasmuch as the Parliament did think that if a definite matter of public importance would be there, a judicial inquiry should be ordered, if a need for the same exists according to the appropriate Government. There is no dispute so far. We would further say that if any reasonable man reasonably instructed in law would have come to the conclusion that the need for judicial inquiry exists, the denial of the same by the Government could, in the facts of a case, be regarded by the Court as meant to serve an alien purpose.

Duty of the Government:

In view of all the above, we hold that refusal of judicial inquiry in the present case is to serve an “alien purpose” (which party in power would normally like to get matters involving its members inquired into by a judicial body?). The law, therefore, permits us to order for a judicial inquiry, which we hereby do. May we add that we think that the Government would not feel shy to do so, as it is the Court which is ordering for the same; more so, when the inquiry would serve larger public interest which consists in seeing that lives of people are not taken away by persons involved in encouraging trading in illicit liquor. Further, it would be good for the Government if, on inquiry being made, it would be found that nobody of its party had any role to play in the great tragic drama. Needless to say that the Government is under a constitutional obligation to protect the people from those who trade in the blood of the people.

[Source: Janamohan Das vs State Of Orissa, AIR 1993 Ori 157]

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