C/SCA/14389/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 14389 of 2014
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PRANLAL N. SONI AND ANOTHER ...Petitioners
Versus
STATE OF GUJARAT ...Respondent
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Appearance:
MR N.D.NANAVATY, SENIOR ADVOCATE with
MR A.Y.KOGJE, ADVOCATE for the Petitioners
MR.PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with
MR.RASHESH RINDANI, AGP for the Respondent State
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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 their
fundamental right, challenging the Notification dated
26.11.21! 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 26.11.21! appointing a
t$o/mem"er Commission of In)uiry, headed "y a retired 0igh
Court 1udge.
2.2 The very foundation of appointing the said Commission,
as it transpires from the impugned Notification is that, certain
ne$s items had appeared in the print and electronic media at
the relevant time, )uoting certain audio/tapes pu"lished on
$e" portals 2Co"ra 3ost4 and 2#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 %eopardi6ed.
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 26.11.21!.
!. 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 26.11.21!, 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 1ani, 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 218 dated *.+.218 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 2Co"ra 3ost4 and 2#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 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.
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 $orkers and other
"usy "odies, are constantly intruding into the private life of the
petitioners and their family mem"ers. The petitioner-s email
accounts are "eing hacked and scores of indecent calls are
"eing received from all over. @nder the guise of protecting the
petitioner-s privacy, every action undertaken "y the so called
custodians for and on "ehalf of the petitioners has resulted
into a "reach of privacy of the petitioners, making life
impossi"le on a day to day "asis. It is su"mitted that, not only
the petitioners, "ut other family mem"ers are also facing
immense mental and psychological trauma, and for no fault or
action attri"uta"le to the petitioners, the petitioners and their
family mem"ers are compelled to undergo immense mental
psychological trauma. It is reiterated that, in this crossfire
"et$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 Aench of
0onoura"le the 'upreme Court of India in the case of :am
>rishna <almia versus 1ustice Tendolkar reported in AI: 1*+B
'C +!B.
6.+ It is su"mitted that, the impugned Notification $as
un$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 218 $ith the follo$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 print
media+ 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.C 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 *.+.218.
.r. .ohan &arasaran+ $earned /o$icitor
)enera$ of 0ndia ma%es a statement that .r.1api$
/iba$+ 2nion .inister for 3aw and 4ustice has
a$ready made a statement that there is no
proposa$ to appoint a commission of en"uiry.
3earned /o$icitor )enera$ of 0ndia reiterates
the said statement that there is no proposa$ to
appoint a commission of en"uiry. 5e record this
statement.
0n view of this statement+ prayer 6b7 of
the writ petition does not survive.
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/o far as prayer 6a7 is concerned+ $earned
counse$ for the petitioner see%s permission to
withdraw this prayer and approach the ,igh Court
of )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.
C. ?n the other hand, ;r.3rakash 1ani, learned Additional
Advocate #eneral for the respondent 'tate has su"mitted that,
according to the 'tate, its action of issuing the Notification
dated 26.11.21! $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.1ani 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 $hat is asserted "y the petitioners in
para(!.+ of this petition. The said para reads as under.
3.: 2nder immense anguish+ agony+ he$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$$ appeared before the
Chair &erson of the /tate Commission with their
respective proofs of identity and c$arified the
factua$ position before her in writing.
&etitioner No.2 categorica$$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. 0t 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. 8he
Chair &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
$hether the impugned Notification dated 26.11.21! is
sustaina"le in la$, 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, 21!, )uoting certain audio/tapes
pu"lished on $e" portals 2Co"ra 3ost4 and 2#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
%eopardi6ed. 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 not
only 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.
617 8he appropriate )overnment may+ if it is
of opinion that it is necessary so to do+ and
sha$$+ if a reso$ution in this beha$f is passed
by =each ,ouse of &ar$iament or+ as the case may
be+ the 3egis$ature of the /tate>+ by
notification in the ?fficia$ )a@ette+ appoint a
Commission of 0n"uiry for the purpose of ma%ing
an in"uiry into any definite matter of pub$ic
importance and performing such functions and
within such time as may be specified in the
notification+ and the Commission so appointed
sha$$ 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 Aench of 0onoura"le the
'upreme Court of India in the case of :am >rishna <almia
versus 1ustice Tendolkar reported in AI: 1*+B 'C +!B, more
particularly 3ara(1! thereof, $hich reads as under.
13. 0t wi$$ be apparent from its $ong tit$e that
the purpose of the ;ct is to provide for the
appointment of Commissions of 0n"uiry and for
vesting such Commissions with certain powers.
/ection 3 empowers the appropriate )overnment+
in certain circumstances therein mentioned+ to
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appoint a Commission of 0n"uiry for the purpose
of ma%ing an in"uiry into any definite matter of
pub$ic importance and performing such functions
within such time as may be specified in the
notification. 0t seems c$earAand it has not been
controvertedA that on a proper construction of
this section+ the functions the performance of
which is contemp$ated must be such as are
anci$$ary to and in aid of the in"uiry itse$f
and cannot be read as a function independent of
or unconnected with such in"uiry. 8hat being the
position+ as we conceive it to be+ the "uestion
arises as to the scope and ambit of the power
which is conferred by it on the appropriate
)overnment. 8he answer is furnished by the
statute itse$f+ for /.3 indicates that the
appropriate )overnment can appoint a Commission
of 0n"uiry on$y for the purpose of ma%ing an
in"uiry into any definite matter of pub$ic
importance and into no other matter. 0n other
words the sub-ect matter of the in"uiry can on$y
be a definite matter of pub$ic importance. 8he
appropriate )overnment+ it fo$$ows+ is not
authorised by this section to appoint a
Commission for the purpose of ho$ding an in"uiry
into any other matter. 3earned /o$icitorA
)enera$+ in the premises+ submits that the
section itse$f on the face of it+ ma%es a
c$assification so that this statute fa$$s within
the first category mentioned above and contends
that this c$assification of things is based on
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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$$ for an in"uiry by a
Commission. 0n the a$ternative the $earned
/o$icitorA)enera$ urges that in any case the
section itse$f "uite c$ear$y indicates that the
po$icy of &ar$iament is to provide for the
appointment of Commissions of 0n"uiry to in"uire
into any definite matter of pub$ic importance
and that as there is no %nowing when+ where or
how any such matter may crop up &ar$iament
considers it necessary or e9pedient to $eave it
to the appropriate )overnment to ta%e action as
and when the appropriate moment wi$$ arrive. 0n
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$$ed+ for the discretion
given to the appropriate )overnment to set up a
Commission of 0n"uiry must be guided by the
po$icy $aid down+ name$y+ that the e9ecutive
action of setting up a Commission of 0n"uiry
must conform to the condition of the section+
that is to say+ that there must e9ist a definite
matter of pub$ic importance into which an
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in"uiry is+ in the opinion of the appropriate
)overnment+ necessary or is re"uired by a
reso$ution in that beha$f passed by the ,ouse of
the &eop$e or the 3egis$ative ;ssemb$y of the
/tate. 0f the preamb$es or the provisions of the
statutes c$assed under the first category
mentioned above cou$d be read as ma%ing a
reasonab$e c$assification satisfying the
re"uirements of ;rt. 1B and if the preamb$e to
the statute considered in the case of 1athi
aning awat 6!7 6supra7 cou$d be construed as
$aying down sufficient$y c$ear$y a po$icy or
princip$e for the guidance of the e9ecutive+
what ob-ection can there be to construing /.3 of
the ;ct now under our consideration as a$so
ma%ing a reasonab$e c$assification or at any
rate as dec$aring with sufficient c$arity the
po$icy of &ar$iament and $aying down a princip$e
for the guidance of the e9ercise of the powers
conferred on the appropriate )overnment so as to
bring this statute at $east in the fourth
category+ if not a$so in the first category C ?n
the authorities+ as they stand+ it cannot be
said that an arbitrary and uncontro$$ed power
has been de$egated to the appropriate )overnment
and that+ therefore+ the $aw itse$f is bad.'
6emphasis 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 holds
that, $hile issuing the impugned Notification, none of the
conditions precedent of e&ercise of po$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 21! 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 has
got 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 26.11.21! 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 26.11.21! $as
un$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 that
very 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 $ent into the "ackground and it is
the duty of this Court to listen to that very voice of the
concerned citi6en, ho$ 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 citi6en 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 26.11.21! 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
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