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Newly Recognized Fundamental Right to Privacy Protects Individual Not Only from State, But Also from Actions of Private Citizens such as Press or Media: Kerala HC Observes in Solar Scam Case [Read Judgment]

News May 16, 2018

Manu Sebastian

“The newly recognized fundamental right to privacy, which takes within its fold the right to protect ones reputation as well, would merit classification as a fundamental right that protects an individual, not against the arbitrary State action, but also from the actions of other private citizens, such as the press or media”.

While expunging the findings made by the Justice G Sivarajan Commission, commonly known as the Solar commission, on sexual allegations against former Kerala Chief Minister Oommen Chandy in the ‘solar scam case’, the High Court of Kerala has observed that the fundamental right to privacy included the right to protect one’s reputation, and that it protects an individual against actions of private citizens as well.

The court had expunged certain remarks noting that the sexual allegations did not form part of the Terms of Reference of the commission and that the former CM was not put on proper notice regarding the inquiry on sexual allegations. Although the commission report has no legal binding force, the findings entered on sexual allegations without following due course of law can pave way to public discussions in media and press. Also, since the report was prepared by a retired judge of the high court, the public might tend to view the findings with legal sanctity, which could prejudicially affect the right to reputation and right to privacy of the former CM. It was in that context that the court invoked the right to privacy and reputation and its horizontal application with regard to private parties in order to expunge those findings.

“The newly recognized fundamental right to privacy, which takes within its fold the right to protect ones reputation as well, would merit classification as a fundamental right that protects an individual, not against the arbitrary State action, but also from the actions of other private citizens, such as the press or media,” observed Justice Jayasankaran Nambiar in the judgment.

However, it is pertinent to note that the court did not interfere with the other findings made by the commission. The petition filed by Thiruvanchoor Radhakrishnan, former Home Minister, which was considered along with the petition filed by Oommen Chandy, was dismissed. The former Home Minister was alleged to have deflected the course of investigation in solar scam case abusing his power. Other issues discussed in the judgment are as follows:

Scope of judicial review of findings of the commission report

The court held that the scope of review of findings of Report of Commission of Inquiry was very limited. The following principles were stated in that regard:

  • The Commission is a mere fact-finding body, having no judicial or quasi-judicial powers, and its findings are only for the information of the government for taking future action on the issue.
  • The commission report is only an opinion, and has no evidentiary value as such.
  • The statements of witnesses in the commission proceedings cannot be used in other civil or criminal proceedings as evidence.

The above being the nature of powers and functions of a commission, its report is merely an expression of opinion, and therefore it cannot be regarded as prejudicial to the legal rights of an individual. The court will interfere with the findings only if there is any manifest violation of statutory procedure by the commission.

It is not open to former CM & HM to contend that the commission was appointed by their govt without following statutory conditions

The former CM and HM contended that the commission was appointed by the then government without fulfilling the statutory conditions under Section 3 of the Commission of Inquiry Act. The contention was that the government had to form a prima facie opinion regarding the allegations before appointing the commission and that a commission cannot be appointed to make an inquiry into the veracity of allegations without any prima facie opinion of the government. However, the court noted that the petitioners were part of the very same government which had appointed the commission. It also noted that the petitioners had participated in the proceedings of commission without taking any such objections. Therefore, the court held that it was not open for them to contend that the commission was appointed without following statutory conditions. Apart from that, the court found on the basis of materials that the commission was appointed by the government after due deliberations.  The court also held that commission can be appointed to inquire into allegations, as allegations can raise matters of “public importance”, as per Section 3 of the Act. The court was also not impressed by the argument that commission was doing a parallel investigation of pending criminal cases. It noted that the pending criminal cases did not figure the petitioners as accused.

Plea that notice under Section 8B was not duly served

The petitioners contended that there was a failure in issuing proper notice under Section 8B of the Act, resulting in violation of principles of natural justice. But this contention was rejected. The court held that there was substantial compliance of Section 8B. The notice need not be issued in any particular format. Upon issuance of the notice, it was open to the petitioners to examine all the materials which were with the possession of the commission. Also, the petitioners participated in the proceedings without any objection, and therefore they should be regarded as having acquiesced to the notice.

However, with respect to the findings of commission based on the letter of Saritha Nair which had sexual allegations, the court held that inquiry in that regard was not covered by the Terms of Reference. Therefore, the petitioners were justified in stating that they were caught unawares by the findings of the commission based on that letter.

Though the findings on sexual allegations were expunged, other findings of the commission were left undisturbed. The court made it clear that “the Government shall treat the report of the Commission of Inquiry as comprising of only those parts as have not been expunged through this judgment”.

Read the Judgment Here

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