Gujarat high court Snoopgate judgment

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C/SCA/14389/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 14389 of 2014

================================================================PRANLAL N. SONI AND ANOTHER ...Petitioners

Versus

STATE OF GUJARAT ...Respondent================================================================

Appearance:MR N.D.NANAVATY, SENIOR ADVOCATE withMR A.Y.KOGJE, ADVOCATE for the Petitioners

MR.PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL withMR.RASHESH RINDANI, AGP for the Respondent State================================================================

CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

Date : 10/10/2014 ORAL JUDGMENT

1. The father and his married daughter, the petitioners No.1

and 2 respectively, have approached this Court invoking Article

226 of the Constitution of India, for protection of theirfundamental right, challenging the Notification dated

26.11.2 1! issued "y the respondent #overnment, the details

of $hich are recorded hereunder, complaining that it has

violated their fundamental right of life and personal li"erty

guaranteed under Article 21 of the Constitution of India.

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2.1 The #overnment of #u%arat, in e&ercise of po$ers under

'ection(! of the Commissions of In)uiry Act, 1*+2 for short

-the Act- , issued a Notification dated 26.11.2 1! appointing a

t$o/mem"er Commission of In)uiry, headed "y a retired 0igh

Court udge.

2.2 The very foundation of appointing the said Commission,as it transpires from the impugned Notification is that, certain

ne$s items had appeared in the print and electronic media at

the relevant time, )uoting certain audio/tapes pu"lished on

$e" portals Co"ra 3ost4 and #ulail.com4 regarding some

alleged incident5s of security 5 surveillance of a $oman in the

'tate of #u%arat in the year 2 *. The said Notification further

records that, it is in the interest of %ustice that the image and 5

or identity of the $oman in )uestion is not %eopardi ed.

2.! It is this very lady, $ho is referred to as -the $oman in

)uestion- in the impugned Notification, $ho is "efore this

Court, along $ith her father, complaining that, malicious

campaign "y groups and "usy "odies having vested interests,

$earing the mask of the protectors of the petitioners- right to

privacy, has infact resulted into tarnishing the reputation of the

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petitioners and in the cross/fire "et$een the political parties,

the dignity, reputation and privacy of the petitioners are

seriously compromised, and further that, inspite the petitioners

having repeatedly conveyed "efore all statutory authorities,

including the National Commission for 7omen, 'tate

Commission for 7omen, as also "efore 0on4"le the 'upreme

Court of India, that they have at no stage ever felt that their

privacy $as "eing interfered $ith "y any of the actions of the'tate Authorities, under the prete&t of protecting the privacy of

the petitioners, there has "een a political $arfare and in the

said cross/fire, the petitioners themselves, more particularly

petitioner No.2, has "een reduced as a collateral damage.

2.8 It is at the instance of these petitioners, that this Court is

e&amining the legality and validity of the impugned

Notification dated 26.11.2 1!.

!. 9earned advocate for the petitioners, at the outset

su"mitted that, for the purpose of e&amining the legality and

validity of the impugned Notification dated 26.11.2 1!, the

respondent No.2 is not a necessary party and therefore he

seeks permission to delete respondent No.2. 3ermission as

prayed for is granted. Cause title "e amended accordingly.

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8. :ule. ;r.:ashesh :indani, learned Assistant #overnment

3leader $aives service of notice of :ule on "ehalf of the

respondent / 'tate.

+. 0eard ;r.N.<.Nanavaty, learned senior advocate $ith

;r.A.=.>og%e, learned Advocate for the petitioners, and

;r.3rakash ani, learned Additional Advocate #eneral $ith;r.:ashesh :indani, learned Assistant #overnment 3leader for

the respondent 'tate.

6.1 ;r.Nanavaty, learned senior advocate for the petitioners

has taken this Court through the averments made "y the

petitioners as contained in the memo of this petition, the order

passed "y 0on-"le the 'upreme Court of India in the 7rit

3etition Civil No.8 + of 2 18 dated *. +.2 18 and the

paper/"ook of the said petition, $hich is placed on record of

this petition.

6.2 ?n "ehalf of the petitioners, it is su"mitted that, the very

foundation of issuing the impugned Notification $as that

certain ne$s items had appeared in the print and electronic

media at the relevant time, )uoting certain audio/tapes

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pu"lished on $e" portals Co"ra 3ost4 and #ulail.com4

regarding some alleged incident5s of security 5 surveillance of a

$oman in the 'tate of #u%arat in the year 2 *. It is su"mitted

that, it is this very lady, $ho is "efore this Court, along $ith

her father, $ith the grievance that, certain groups and "usy

"odies $earing the mask of the protectors of the petitioners-

right to privacy, made hue and cry and in the cross/fire

"et$een the political parties, the dignity, reputation andprivacy of the petitioners are seriously compromised, and

further that, inspite the petitioners having repeatedly

conveyed "efore all statutory authorities, including the

National Commission for 7omen, 'tate Commission for

7omen, as also "efore 0on4"le the 'upreme Court of India,

that they have at no stage ever felt that their privacy $as

"eing interfered $ith "y any of the actions of the 'tate

Authorities, under the prete&t of protecting the privacy of the

petitioners, there has "een a political $arfare and in the said

cross/fire, the petitioners themselves, more particularly

petitioner No.2, has "een reduced as a collateral damage.

6.! It is also su"mitted that, on account of malicious

campaign "eing carried out "y the persons $ith vested

interests, the petitioners have had to change their residential

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accommodation four times in the past fe$ months. The print,

electronic and social media, so called social $orkers and other

"usy "odies, are constantly intruding into the private life of the

petitioners and their family mem"ers. The petitioner-s email

accounts are "eing hacked and scores of indecent calls are

"eing received from all over. @nder the guise of protecting the

petitioner-s privacy, every action undertaken "y the so called

custodians for and on "ehalf of the petitioners has resultedinto a "reach of privacy of the petitioners, making life

impossi"le on a day to day "asis. It is su"mitted that, not only

the petitioners, "ut other family mem"ers are also facing

immense mental and psychological trauma, and for no fault or

action attri"uta"le to the petitioners, the petitioners and their

family mem"ers are compelled to undergo immense mental

psychological trauma. It is reiterated that, in this crossfire

"et$een vested interests, the petitioners, as collateral

damages, are su"%ected to violation of their fundamental rights

on a daily "asis. It is su"mitted that, the impugned Notification

"e )uashed and set aside.

6.8 It is further su"mitted that, none of the conditions

precedent to e&ercise of po$ers under 'ection ! of the Act $as

satisfied in the present case and therefore the impugned

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Notification is illegal on that count also. In support of this

contention, reliance is placed "y the learned advocate for the

petitioners on the decision of the Constitution ench of

0onoura"le the 'upreme Court of India in the case of :am

>rishna <almia versus ustice Tendolkar reported in AI: 1*+B

'C +!B.

6.+ It is su"mitted that, the impugned Notification $asun$arranted in the facts and is unsustaina"le in la$, and

therefore the same "e )uashed and set aside.

6.6 It is also su"mitted that, the petitioners had earlier

approached 0onoura"le the 'upreme Court of India invoking

Article !2 of the Constitution of India "y filing a 7rit 3etition

"eing 7rit 3etition Civil No.8 + of 2 18 $ith the follo$ing

prayers.

“a. Direct the respondent No.2 not to proceed

further with the proceedings of the Commission

constituted by the Notification dated 26 th

November 2013 issued by the espondent No.2.

b. Direct the espondent No.1 or any of its

Department not to proceed with the constitution

of the Commission of !n"uiry or a #ody of the

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$i%e nature to go into any "uestion based upon

the contents of “Cobra &ost' and ()u$a$.com* and

c. estrain any pub$ishing either by printmedia+ e$ectronic or the socia$ media or in any

other mode any news concerning the &etitioners

direct$y or indirect$y in re$ation to the issue

in (Cobra &ost* and ()u$a$.com*.

d. &ass such other and further order or

direction as this ,on*b$e Court deems fit in the

circumstances of the case in the interest of

-ustice.'

6. It is su"mitted that, on the said $rit petition the

follo$ing order $as passed "y 0on-"le the 'upreme Court of

India on *. +.2 18.

“ r. ohan &arasaran+ $earned /o$icitor

)enera$ of ndia ma%es a statement that r. api$

/iba$+ nion inister for aw and 4ustice has

a$ready made a statement that there is no

proposa$ to appoint a commission of en"uiry.

earned /o$icitor )enera$ of ndia reiterates

the said statement that there is no proposa$ to

appoint a commission of en"uiry. 5e record this

statement.

n view of this statement+ prayer b7 ofthe writ petition does not survive.

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/o far as prayer a7 is concerned+ $earned

counse$ for the petitioner see%s permission to

withdraw this prayer and approach the ,igh Courtof )u-arat for appropriate re$ief in respect of

the said prayer. 8he petitioner may do so. 5e

ma%e it c$ear that we have e9pressed no opinion

on the merits of the case.

8he writ petition is disposed of.'

6.B It is su"mitted that, it is under these circumstances that

this petition is filed. It is prayed that, the impugned Notification

"e )uashed and set aside.

. ?n the other hand, ;r.3rakash ani, learned Additional

Advocate #eneral for the respondent 'tate has su"mitted that,

according to the 'tate, its action of issuing the Notification

dated 26.11.2 1! $as in accordance $ith la$. 0e ho$ever has

su"mitted that, he has instructions to state that, in the facts

noted a"ove, if this Court is inclined to accept this petition, the

'tate does not have any o"%ection. ;r. ani is specifically asked

"y this Court a"out the factual aspects of the matter as

asserted in this petition, to $hich it is su"mitted that, there is

no dispute so far the facts stated "y the petitioners are

concerned. It is specifically in)uired as to $hat the

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#overnment has to say $ith regard to the averments made in

para(!.+ of the petition, and to that also it is su"mitted that,

there is no dispute $ith regard to the factual aspects of the

matter, including $hat is asserted "y the petitioners in

para(!.+ of this petition. The said para reads as under.

“3.: nder immense anguish+ agony+ he$p$essness

and in an endeavor to protect their privacy and

reputation against the ma$icious+ base$ess and

defamatory campaign being carried out for

e9traneous reasons+ the petitioners decided to

re"uest the Chair &erson of the )u-arat /tate

Commission for 5omen+ a statutory commission

constituted under the )u-arat /tate Commission

for 5omen ;ct+ 2013+ to permit petitioner no.1+

petitioner no2+ and her husband to appear before

the /tate Commission in person. 8he Chair &erson

of the /tate Commission for 5omen %ind$y

consented to a persona$ meeting. &etitioner No.1

and 2 and her husband a$$ appeared before the

Chair &erson of the /tate Commission with their

respective proofs of identity and c$arified thefactua$ position before her in writing.

&etitioner No.2 categorica$$y informed the Chair

&erson that the safety measures ta%en by the

/tate ;gencies+ upon her father*s re"uest+ were

not on$y within her %now$edge but comp$ete$y

-ustified and appropriate under the

circumstances prevai$ing at the re$evant point

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of time. t was a$so pointed out that both the

fami$ies remained than%fu$ to the /tate

;uthorities for ta%ing time$y and ade"uate steps

acceding to the petitioner No<1*s re"uest. 8heChair &erson of the /tate Commission e9amined

and verified the identities of the petitioners

and the husband of petitioner no.2 in the

presence of the Chief /ecretary+ /tate of

)u-arat and recorded their statements.'

B. The point for consideration "efore this Court is, as to

$hether the impugned Notification dated 26.11.2 1! is

sustaina"le in la$, and further as to $hether in the facts of this

case, it $as $arranted. 0aving heard learned advocates for the

respective parties and having gone through the material on

record, this Court finds as under.

B.1 The very foundation of appointing the said Commission,

as noted in the impugned Notification $as that, certain ne$s

items had appeared in the print and electronic media

some$here in Novem"er, 2 1!, )uoting certain audio/tapes

pu"lished on $e" portals Co"ra 3ost4 and #ulail.com4

regarding some alleged incident5s of security 5 surveillance of a

$oman in the 'tate of #u%arat in the year 2 *. The first

amongst the other terms of :eference is to in)uire into the

authenticity and veracity of the said tapes. The said

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Notification further records that, it is in the interest of %ustice

that the image and 5 or identity of the $oman in )uestion is not

%eopardi ed. Not only the concerned individual had not asked

for any such in)uiry, she had as a matter of fact re)uested

that, it may not "e done.

B.2 Thus, the very conceivation of the %udicial in)uiry in

)uestion is some audio / tapes, the authenticity of $hich is notonly not esta"lished, "ut "y the very In)uiry, the veracity

thereof $as yet to "e gone into, and assuming the contents of

the said conversation to "e right, the conse)uential alleged

infringement of an individual-s privacy i.e. of the petitioner

No.2 and circumstances leading thereto, including as to

$hether release of the said tapes after a long gap of four years

reveal any conspiracy, are ordered to "e in)uired into. The

)uestion is, as to $hether, $hat $as sought to "e in)uired into

can "e termed to "e an in)uiry into i any definite matter, and

if yes, ii $hether it can "e termed to "e a matter of pu"lic

importance, as contemplated under 'ection ! of the Act.

B.! 'u"/section 1 of 'ection(! of the Act, omitting the

proviso $hich is not material for this petition, reads as under.

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“3. ;ppointment of Commission.

17 8he appropriate )overnment may+ if it is

of opinion that it is necessary so to do+ and

sha$$+ if a reso$ution in this beha$f is passedby =each ,ouse of &ar$iament or+ as the case may

be+ the egis$ature of the /tate>+ by

notification in the ?fficia$ )a@ette+ appoint a

Commission of n"uiry for the purpose of ma%ing

an in"uiry into any definite matter of pub$ic

importance and performing such functions and

within such time as may be specified in the

notification+ and the Commission so appointed

sha$$ ma%e the in"uiry and perform the functions

according$y<

&rovided that........'

B.8 The scope and am"it of the said 'ection is discussed and

e&plained "y the Constitution ench of 0onoura"le the

'upreme Court of India in the case of :am >rishna <almia

versus ustice Tendolkar reported in AI: 1*+B 'C +!B, more

particularly 3ara(1! thereof, $hich reads as under.

“13. t wi$$ be apparent from its $ong tit$e that

the purpose of the ;ct is to provide for the

appointment of Commissions of n"uiry and for

vesting such Commissions with certain powers.

/ection 3 empowers the appropriate )overnment+

in certain circumstances therein mentioned+ to

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an inte$$igib$e differentia which has a

reasonab$e re$ation to the ob-ect sought to be

achieved by it+ for a definite matter of pub$ic

importance may we$$ ca$$ for an in"uiry by aCommission. n the a$ternative the $earned

/o$icitorA)enera$ urges that in any case the

section itse$f "uite c$ear$y indicates that the

po$icy of &ar$iament is to provide for the

appointment of Commissions of n"uiry to in"uire

into any definite matter of pub$ic importance

and that as there is no %nowing when+ where or

how any such matter may crop up &ar$iament

considers it necessary or e9pedient to $eave it

to the appropriate )overnment to ta%e action as

and when the appropriate moment wi$$ arrive. n

the tempo of the prevai$ing conditions in modern

society events occur which were never foreseen

and it is impossib$e for &ar$iament or any

$egis$ature to anticipate a$$ events or to

provide for a$$ eventua$ities and+ therefore+ it

must $eave the duty of ta%ing the necessary

action to the appropriate )overnment. 8his

de$egation of authority+ however+ is not

unguided or uncontro$$ed+ for the discretion

given to the appropriate )overnment to set up a

Commission of n"uiry must be guided by the

po$icy $aid down+ name$y+ that the e9ecutive

action of setting up a Commission of n"uiry

must conform to the condition of the section+

that is to say+ that there must e9ist a definite

matter of pub$ic importance into which an

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in"uiry is+ in the opinion of the appropriate

)overnment+ necessary or is re"uired by a

reso$ution in that beha$f passed by the ,ouse of

the &eop$e or the egis$ative ;ssemb$y of the/tate. f the preamb$es or the provisions of the

statutes c$assed under the first category

mentioned above cou$d be read as ma%ing a

reasonab$e c$assification satisfying the

re"uirements of ;rt. 1B and if the preamb$e to

the statute considered in the case of athi

aning awat !7 supra7 cou$d be construed as

$aying down sufficient$y c$ear$y a po$icy or

princip$e for the guidance of the e9ecutive+

what ob-ection can there be to construing /.3 of

the ;ct now under our consideration as a$so

ma%ing a reasonab$e c$assification or at any

rate as dec$aring with sufficient c$arity the

po$icy of &ar$iament and $aying down a princip$e

for the guidance of the e9ercise of the powers

conferred on the appropriate )overnment so as to

bring this statute at $east in the fourth

category+ if not a$so in the first category ?n

the authorities+ as they stand+ it cannot be

said that an arbitrary and uncontro$$ed power

has been de$egated to the appropriate )overnment

and that+ therefore+ the $aw itse$f is bad.'

emphasis supp$ied by this Court7

B.+ ?n con%oint reading of $hat is noted in para(B.1 to B.!

and the preposition of la$ noted in para(B.8 a"ove, this Court

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arrives at the conclusion that, $hat $as sought to "e in)uired

into $as something, $hich $as certainly not -any definite

matter- as contemplated under 'ection ! of the Act. Durther,

intrusion if any, in an individual-s privacy, as may "e perceived

"y some persons or groups of persons, $hich is inconsistent

$ith the perception of the concerned individual, can not "e

termed to "e -a matter of pu"lic importance- as contemplated

under 'ection ! of the Act. Dor these reasons, this Court holdsthat, $hile issuing the impugned Notification, none of the

conditions precedent of e&ercise of po$ers under 'ection ! of

the Act $as fulfilled, and therefore the impugned Notification is

unsustaina"le in la$.

*.1 0aving held that the impugned Notification is

unsustaina"le in la$, it may not "e necessary to decide as to

$hether in the facts of this case issuance thereof $as

$arranted, ho$ever there is ample material on record to hold

that, even on facts, the appointment of such a Commission

$as not $arranted. In this regard, the follo$ing aspects need

to "e recorded.

*.2 The alleged surveillance is claimed to have "een made

some$here in the year 2 *. The surreptitious popping up of

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tapes some$here in Novem"er 2 1! is not seen to "e a mere

coincidence "y the petitioners. ;any things are alleged in the

petition, including the vested interests of certain political

sections, ho$ever those )uestions are neither pressed, nor are

re)uired to "e gone into "y this Court, "ut there can not "e

any dispute that the alleged infringement of privacy of

petitioner no.2 $as firstly the matter of concern, for and of her

o$n self. It is her o$n case that, in the interregnum she hasgot married, she is living at her matrimonial house happily and

further that, not only she did not have any grievance at the

relevant time even if $hat is perceived "y the so/called

protectors of her fundamental right to "e violation thereof,

much $ater has flo$n thereafter, and she has already settled

in her life "y this time. 'he, along $ith her father and her

hus"and had approached different authorities including the

National and the 'tate Commission for 7omen re)uesting not

to do, $hat $as asked for on her "ehalf "y many. Even their

statements $ere recorded in the presence of not less than the

Chief 'ecretary of the 'tate, that too after satisfying a"out

their identities and the re)uest $as made "y them that they

do not $ant this issue "e "lo$n up. ?n the face of these

undisputed facts, this Court finds that there $as no occasion

for the #overnment to order any %udicial in)uiry in that regard.

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Dor these reasons, this Court finds that, even on facts, the

action of the #overnment of issuing the impugned Notification

dated 26.11.2 1! appointing the Commission of In)uiry, $as

un$arranted.

1 .1 In vie$ of a"ove, this Court arrives at the %udgment

that, the impugned Notification dated 26.11.2 1! $as

un$arranted on facts, and is unsustaina"le in la$.

1 .2 Drom the record it transpires that, num"er of groups at

the top of their voice screamed against the alleged

encroachment of the privacy of petitioner no.2 and demanded

investigation in the affairs of the 'tate in that regard. At thatvery point of time, the concerned lady herself $as also

screaming $ith $hatever fee"le voice she had, that she does

not $ant these things to "e gone into. It is not that her dissent

has escaped notice. It is on record that her say, conveying her

N?, $as already there "efore various authorities, "ut for the

reasons $hich are not re)uired to "e gone into "y this Court,

the same $as completely overlooked "y the concerned

authorities at the relevant time. The irony is that, under the

prete&t that the alleged encroachment of privacy of petitioner

no.2 needs to "e in)uired into, that too irrespective of her say,

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her privacy has stood intruded.

1 .! This Court also finds that, in the commotion created "y

the shouts from various )uarters, including the so/called

custodians of the dignity of petitioner no.2, the fee"le voice of

the petitioner no.2 herself $ent into the "ackground and it is

the duty of this Court to listen to that very voice of the

concerned citi en, ho$ so fee"le it may "e, and on doing so,$hat is heard "y this Court, in no uncertain terms is that, at

least the concerned citi en states that, she does not $ant any

in)uiry in that regard and further that, $hat is alleged against

the 'tate Authorities had not resulted in intrusion in her

privacy, "ut no$ $hat is sought to "e done, certainly has

resulted into intrusion in her privacy and has there"y resulted

in violation of her fundamental right. It is this situation, against

$hich the petitioners need to "e protected "y this Court.

11. Dor the reasons recorded a"ove, this petition is allo$ed.

The impugned Notification dated 26.11.2 1! issued "y the

respondent #overnment is )uashed and set aside. The

summons issued "y the Commission to the petitioners or to

any other person $ould no$ not survive. :ule made a"solute.

No order as to costs.

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(PARESH UPADHYAY, J.)

Amit

Gujarat high court Snoopgate judgment

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