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1993 DIGILAW 573 (GUJ)

LOK ADHIKAR SANGH v. STATE

1993-12-29

SHARAD D.DAVE

body1993
S. D. DAVE, J. ( 1 ) THE present proceedings arise under Arts. 14 and 226 of the Constitution of India. They are at the instance of Lok Adhikar Sangh, an unregistered and unincorporated organisation said to be working since 1977. The proceedings have been characterised as the PUBLIC INTEREST litigation. The proceedings appear to be the sequel to the resignation of Honble The Home Minister and the letters prior to and after the said resignation addressed to the Honble The Chief Minister of the State of gujarat. ( 2 ) PARAGRAPH-1 of the petition demonstrates the facts and circumstances under which the proceedings have been initiated. It also gives the glimpses of what the prayers ultimately would be. Paragraph-1 of the petition may be quoted thus :"the petitioner, Lok Adhikar Sangh, craves liberty to file this petition by way of public interest litigation raising the question of the protection of the life, liberty and property of the citizens of India in the State of Gujarat threatened by the policy of the Government to shield anti-social elements in the State of Gujarat. The petitioner also prays for the appointment of a high level independent commission to enquire into the allegations made by Shri C. D. Patel, in-crge of the Home Affairs against the present Chief Minister of gujarat. " ( 3 ) ACCORDING to the petitioner, they are a voluntary organisation, unregistered and unincorporated but working since year 1977. According to the petitioner-Sangh, after year 1980 there has been a radical change in the socio-economic and political situation in the State of Gujarat. The petitioner Sangh is concerned with the fact that, though the State has registered some progress in certain spheres, there has been a registration of serious downfall in many important areas. According to the petitioner sangh, more than 60% of the population of the State belonging to the backward class live below proverty line, while on the other hand the rest of the people which would be within the brackets of 15% to 20% have been able to amass wealth at the cost of the Society. According to the petitioner-Sangh, as a result of this uneven development, there has been a tremendous increase in the illegal and anti-social activities in the people. According to the petitioner-Sangh, as a result of this uneven development, there has been a tremendous increase in the illegal and anti-social activities in the people. ( 4 ) THE petitioner-Sangh would urge that, Shri C. D. Patel, the Home minister of the State of Gujarat, has in his resignation letter, accused the chief Minister of the State of becoming a tool in the hands of antisocial and anti-national elements and that, the decision to divest Shri C. D. Patel of the Home Portfolio, would not go down well" with the people of Gujarat. The petitioner-Sangh feels aggrieved by the functioning of the State Government as revealed from the letter of resignation and that, according to the petitioner-Sangh, the revealation and the disclosure made by Shri C. D. Patel in his letter clearly shown that, the Chief minister is shielding the anti-social and anti-national elements in the State and that, the same has created an imminent and serious danger to the fundamental rights of the people of Gujarat. ( 5 ) IT is broadly on the above said facts and case that the petitioner- sangh prays for the appointment of an Independent Commission to inquire into the allegations made by Shri C. D. Patel, against the Chief Minister. The petitioner-Sangh also prays for an appropriate writ or direction, calling upon the respondents Nos. 1 and 2 to produce and place before this Court the entire correspondence between shri C. D. Patel and the Chief Minister. In the alternative, there has been a prayer for the direction to place the entire correspondence before his Excellency The Governor of Gujarat, in a sealed cover. The petitioner- sangh also prays for the prohibitory orders restraining the respondents from acting in any manner which may amount to the violation of constitutional duties of the State Government and the Chief Minister, ( 6 ) THUS, it is abundantly clear that the petitioner-Sangh on the basis of above said averments made in the petition, asks for the appointment of an Independent Commission and also asks for the disclosure of the entire correspondence which had taken place between Shri C. D. Patel and the chief Minister. ( 7 ) BEING conscious of the fact that the petitioner-Lok Adhikar Sangh prays for the above said reliefs, the learned Counsel Mr. ( 7 ) BEING conscious of the fact that the petitioner-Lok Adhikar Sangh prays for the above said reliefs, the learned Counsel Mr. Girish Patel appearing on behalf of the petitioner-Sangh, would urge that the Public interest Litigation concept has given a go-bye to the age-old principle of locus Standi and that, at present the "standing" is being given to the petitioner when he invokes the provisions contained under Art. 226 of the conotitution of India, even if the petitioner is not able to demonstrate, some personal injury to him, over and above the injury to the class as a whole or the Society as a whole. The learned Counsel for the petitioner would urge that the doctrine of Locus Standi is getting liberalised by the passage of time and that, the age-old doctrine of Locus Standi should not stand in the way of the petitioner-Sangh when it prays for the above said reliefs. Any how, the learned Senior Counsel Mr. G. Ramaswamy appearing on behalf of the respondent No. 1-State would urge that, even if enough latitude is given to the petitioner on the basis of a continuous relaxation of Locus Standi principle, then also looking to the facts and circumstances of the case, the petitioner-Sangh would never be entitled to the reliefs which have been prayed for in the present petition. ( 8 ) TO recapitulate, it must not be overlooked that the petitioner-Sangh has a principal prayer has asked for the appointment of a Commission of inquiry and as a second relief prays for the disclosure of the contents of the letters addressed by Shri C. D. Patel to the Chief Minister along with the letter of resignation. The learned Counsel Mr. Girish Patel appearing on behalf of the petitioner would firstly place reliance upon the supreme Court pronouncement in case of S. P. Gupta and Ors. v. President of India and Ors. , AIR 1982 SC 149 . The reliance has been placed on the above said pronouncement of the Supreme Court, by the learned counsel for the petitioner, for the purpose of emphasising that the traditional rule in regard to Locus Standi is being given a go-bye at present and that the Court should readily respond to such petition and even to a letter to be addressed by an individual acting pro bono puhlico. As noticed above, there can be little quarrel on the submission emanating from the learned counsel Mr. Girish Patel for the petitioner. The traditional rule of Locus standi, with all its barricades and rigidness is not finding favour at present and the Court generally, readily respond to the grievance voiced by a citizen or an association of citizens. ( 9 ) NONETHELESS, there are some limitations to the above said rule which speaks in favour of the relaxation of the rigid prirciple of Locus standi. The decision on which the reliance has been placed by the learned counsel Mr. Girish Patel for the petitioner is a Full Bench decision rendered by Andhra Pradesh High Court in case of Dhronamraju satyanarayana v. N. T. Rama Rao and Ors. , AIR 1988 AP 144 . It was a case in which the petitioner was asking for the issuance of a mandamus directing the Central Government to appoint a commission to go into the charges levelled against the Chief Minister. It was held, on facts, that the questions raised in the petition cannot be said to be political and that, the issues raised by the petitioner were justifiable, and hence the petition could not have been rejected on the issue of Locus Standi. Any how the Full bench decision proceeds to notice that, though the issuance of the mandamus was not justified, the Court was duty bound to mould the reliefs, so as to see that the ends of justice are not frustrated. Relying upon the above said two pronouncements, one of the Supreme Court and the other one of the andhra Pradesh High Court, the learned Counsel Mr. Girish Patel would urge that the facts and circumstances, annexed to the present petition would justify the direction or orders for the disclosure of the contents of the correspondence and that, even if it is found that the issuance of a mandamus for the appointment of a commission would not be justified, then, the appropriate moulded relief should be granted in favour of the petitioner. ( 10 ) THE affidavit-in-reply filed by the Addl. ( 10 ) THE affidavit-in-reply filed by the Addl. Chief Secretary, home Department, Government of Gujarat, would show that the letters referred to in the writ petition wherein it is alleged that there are certain charges levelled against the Chief Minister by Shri C. D. Patel arc remarked as "personal, CONFIDENTIAL and SECRET" and therefore, the same would not be in the file of the respondent No. 1-the State government. The affidavit of Shri Ashok Manek who was working as the personal Secretary to Shri C. D. Patel at the relevant time would go to show that the register does not show any such letter which could have been addressed by Shri C. D. Patel to the Chief Minister. A conjoint reading of these two affidavits would lead to the conclusion that what all has been written by Shri C. D. Patel to the Chief Minister is in the matter of something "personal, confidential and secret". This cannot be said to be true in respect of the resignation letter. The resignation letter would be required to be forwarded to His Excellency The Governor of Gujarat for taking appropriate action. While forwarding the said letter, the necessary advice must have been rendered by the Chief Minister. In view of this position, it has been urged by the learned Senior Counsel Mr. G. Ramaswamy appearing on behalf of respondent No. 1 that, if the letter of resignation contains the advice tendered by the Chief Minister to the governor, then, there cannot be a mandamus or any direction asking for the disclosure of the above said letter. The learned Senior Counsel in this respect would place reliance upon the provisions contained under Art. 163 (3) of the Constitution of India and would also cite the Supreme Court pronouncement in M/s. Doyapack Systems Pvt. Ltd. v. Union of India and ors. , AIR 1988 SC 782 . It has been said in this decision that the documents like official notes, etc. , are the part of the preparation of the documents leading to the formation of the advice tendered to the President of India, and as such would be privileged under Art. 74 (2) of the constitution. , AIR 1988 SC 782 . It has been said in this decision that the documents like official notes, etc. , are the part of the preparation of the documents leading to the formation of the advice tendered to the President of India, and as such would be privileged under Art. 74 (2) of the constitution. It is also noticed that, though there is no sacrosanct rule about the immunity from production of documents and the privilege should not be allowed in respect of each and every document, the claim of immunity and privilege has to be based on public interest. This decision read along with the provisions contained in Art. 163 (3) of the Constitution of India would support the contention raised by the learned Senior Counsel Mr. G. Ramaswamy for the respondent No. 1 that regard being had to the nature of the resignation letter it would not be worthwhile for the Court to issue a mandamus calling upon the respondent No. 1-State to disclose the contents of the said letter of resignation for the public eye. In the same way no useful purpose is going to be served by the direction that said resignation letter or any other such letters may be placed before His Excellency The governor of The State in a sealed cover. The learned Counsel Mr. Girish patel for the petitioner has urged that the contents of the resignation letter along with certain other letters which had preceded the resignation letter have been duly published in the press and certain periodicals being published in the Gujarati language and script. Mr. Patel, therefore, has urged that there is no element of confidentiality in such correspondence and that, in this view of the matter also there should not be any difficulty in the issuance of a mandamus or a direction for the true and full disclosure of the entire correspondence. Merely because the correspondence either in verbatim or in part has been published would not furnish a ground for a justifiable exercise of the powers under Art, 226 of the Constitution of india for the issuance of a mandamus. It could well be urged that, if there is a disclosure of the correspondence either full or partial, there may not be any need of the exercise of the powers under Art. 226 of the constitution of India. It could well be urged that, if there is a disclosure of the correspondence either full or partial, there may not be any need of the exercise of the powers under Art. 226 of the constitution of India. Moreover, if the other correspondence, excepting the resignation letter have been treated as "personal, Confidential and Secret" by the author of the letter and the addressee, it does not appear to be in accordance with the principles governing the writ jurisdiction to issue the mandamus or direction for the publication of the same. Thus it appears that the prayer of the petitioner for direction to the respondents for the disclosure of the correspondence, including the letter of resignation and other letters does not appear to be justifiable, and that the same cannot be countenanced in the present petition. ( 11 ) NOW remains the question regarding the appointment of the commission of Inquiry, as urged by the petitioner-Sangh and canvassed by the learned Counsel Mr. Girish Patel before me. The Full Bench decision rendered by Andhra Pradesh High Court in case of Dhronamraju satyanarayana (supra) would go to show that, though there were specific instances of acts of omission and commission referred to and examined at great length at paras 37 to 76, there was a decline by the Full Bench of the Andhra Pradesh High Court for issuance of writ of mandamus directing the Central Government to appoint a commission. While coming to this conclusion, the reliance was placed upon the provisions contained in Sec. 3 of the Commissions of Inquiry Act, 1952. Even though it was a case of numerous specific instances catalogued, referred and examined in the above said paragraphs, there came a decline from the Full Bench for issuance of mandamus for the appointment of the Commission. Here in this case, all what has been demonstrated before this Court is that probably the letter of resignation and other letters before and after the letter of resignation contained the general accusation against the Chief Minister that "the Chief Minister of the State is becoming a tool in the hands of anti-social and anti-national elements". This broad and general allegations allegedly to be found in the correspondence including the letter of resignation, would rot provide a justifiable cause or reason for the appointment of a Commission of Inquiry. This broad and general allegations allegedly to be found in the correspondence including the letter of resignation, would rot provide a justifiable cause or reason for the appointment of a Commission of Inquiry. Even though there were specific instances before the Full Bench of the Andhra pradesh High Court in case of Dhronamraju Salyanarayana (supra), it has been held that, issuance of a mandamus would not be justified. Following the same principle and reasoning, I would say that the alleged broad accusation in the said correspondence, in my opinion, do not provide adequate, sufficient and reasonable ground for the exercise of the powers under Art. 226 of the constitution of India for the issuance of a mandamus for the appointment of a Commission. It has indeed been urged by the learned Counsel Mr. Girish patel for the petitioner that, if such a course does not appear to be a genuine exercise to me, then in that case, it would be my duty to mould the relief to see that the ends of justice are not frustrated. ( 12 ) THUS the questions repeatedly arising before me are, as to whether or not I should intervene, exercising the High Prerogative Writ Jurisdiction vested in this Court under Art. 226 of the Constitution to issue a Writ of mandamus, or direction calling upon the respondent No. 1-State, to disclose the contents of the Letter of Resignation of a Cabinet Colleague addressed to the Chief Minister, which roust have been duly transmitted to the Governor, with remarks and advice for appropriate action, and the respondent No. 2- the Chief Minister of the State of disclose the contents of other letters before or after the resignation which are in substance and reality appear to be personal, Confidential and Secret. Even accepting the principle, which has culminated in a Rule of Law, that in wider and wider avenues the principle of Locus Standi is being relaxed and in more and more arenas the "standing" is afforded to the petitioners, I am afraid the facts and circumstances, annexed to the petition and reliefs asked for, do not allow me to interfere and to issue the Mandamus or the directions as desired by the petitioner. The same appears to be equally true in respect of the other prayer, namely, issuance of a Mandamus or the directions for the appointment of a Commission of inquiry. The same appears to be equally true in respect of the other prayer, namely, issuance of a Mandamus or the directions for the appointment of a Commission of inquiry. This sounds true to me on two counts. The alleged allegations are too broad, vague and general in character for adoption of such a course. Would they justify any claim to be made by a Court acting under Art. 226 of the constitution, that a judicious discretion would call for a command to the State to appoint a Commission ? Commission - yes, but on what grounds and amidst what facts and to what purpose ? On these considerations I feel, I best refrain from doing so. ( 13 ) THE provisions contained under the Commissions of Inquiry Act, 1952 would also forbid me to exercise the Discretionary Jurisdiction vested in the Court while exercising the Writ Jurisdiction. The appropriate government may if it is of the opinion that it is necessary so do, and shall appoint a Commission of Inquiry if a resolution in this behalf is passed by the Legislature of the State. This Statutory position emanating from the provisions contained in Sec. 3 of the Act of 1952 speaks in favour of a discretion, either of the State Government or of the Legislature, expressed, in form of a Resolution which ultimately becomes a command for the State. The discretion of the State would rest upon a subjective satisfaction formed by the State. The discretion of the Legislature, which ultimately becomes a command for the State would rest upon the Legislative wisdom. The Courts interference would amount to nothing less than the substitution of the subjective satisfaction of the State or Legislative wisdom by its jurisdictional discretion. Some of the Judicial Opinions expressed thus far speak against such exercise. Other opinions grant some discretion to the Courts, to suggest or to bring it to the notice of the State that there exists a situation which calls for the exercise of the powers vested in the government under Sec. 3 the Act of 1952. Thus the issuance of the mandamus as prayed for, appears to be impermissible. The facts and circumstances of the case do not allow me to grant any other relief or the same relief in the moulded form. ( 14 ) IN my considered opinion, therefore, the petition calls for a rejection, I do so hereby. Thus the issuance of the mandamus as prayed for, appears to be impermissible. The facts and circumstances of the case do not allow me to grant any other relief or the same relief in the moulded form. ( 14 ) IN my considered opinion, therefore, the petition calls for a rejection, I do so hereby. The petition thus stands rejected. Notice shall stand discharged. .