In a response to the commission headed by Justice Sugnyaben Bhatt, Ashish Khetan lists out the reasons why this commission has neither the mandate nor the jurisdiction to conduct a free and fair probe against Chief Minister Narendar Modi and his aides.

This is in response to the notice dated 30 December, 2013 issued by the Justice (Retd.) Sugnyaben K Bhatt Inquiry Commission. I have been asked to file an affidavit pertaining to my report of “The Stalkers” published on November 15, 2013.

Saheb and Ghulam: Chief Minister Narendra Modi was holding the portfolio of Home Ministry while Amit Shah was his junior minister at the time when snooping was carried out.

Saheb and Ghulam: Chief Minister Narendra Modi was holding the portfolio of Home Ministry while Amit Shah was his junior minister at the time when snooping was carried out.

I have seen the terms of reference for the Commission. I regret to say that the Commission lacks the mandate to look at the most significant public interest concerns as disclosed by the matter published. In fact, the terms of reference clearly point towards an attempt to shield the State government and its functionaries from grave charges of violation of privacy of a young woman as well as of perverting the facilities and forces available to the State government for the completely unlawful purpose of stalking a woman. Such behavior, which is rightly condemned by any right-thinking person, cannot be condoned when carried out by high functionaries of the State administration. It cannot be the scope of any commission of inquiry to condone any action that serves to curtail the fundamental rights of any citizen of this country. The right to privacy is a fundamental right and in these days, with so much concern being expressed towards the rights, safety and security of women, for the Commission to presume (as is evident from the sixth term of reference) that an adult woman can be provided so-called security without her consent or even knowledge is unfortunate. For my part, I say that I reported on the illegal stalking and snooping of a young, vulnerable woman by the intelligence and anti-terror wings of the Gujarat police quite evidently working at the behest of the highest functionaries of the Gujarat Government.
The scandal of what has now come to be termed ‘Snoopgate’ is not an ordinary act of illegality or misuse of power. Indeed, what is involved here is the violation of one of the basic covenants in a free democracy: that the State shall use the levers of power to protect innocent citizens and that extraordinary powers like phone tapping and police surveillance only in the larger public interest. Furthermore, in the rare instances when public interest may require such surveillance, the same should be manifested by the written order of an authorized official under the Telegraph Act and other applicable laws. An order, even of an officer competent to authorize the same, is of fixed duration, and extendable on the same rigorous conditions as an original order of that nature. From the recordings available it does not appear that the lady concerned and, even her family, had any idea that she was under surveillance. Even if they had, the operation would still be a preposterous misuse of power.

The ‘Snoopgate story’ had produced compelling evidence of how an unsuspecting, innocent woman was stalked and snooped, her personal life was surveilled and analysed, her private telephone conversations with friends and family members and even with her husband to-be were illegally listened to, taped and then circulated among top Gujarat state functionaries. It’ is this blatant infringement of civil liberties and violation of constitutional rights that led to a public outcry and public demands for an independent, fair and effective inquiry. It is further unfortunate that the father of the young lady was forced to come into the public-eye claiming he had asked for surveillance (which is an obvious falsehood as it is clear from the recordings that even her conversations with her family were being reported to the State Government) whereas the State government which is the wrong-doer has not even denied the existence of such surveillance. In such circumstances, for this Commission of inquiry to inquire into the purported conspiracy in the release of such recordings, instead of trying to affix responsibility on the offending officers and ministers, is a tragic dereliction of public duty and an equally tragic distortion of public interest.

Justification for surveillance has to be proven by the State, the burden of proof is not on the person who questions such surveillance. This is a basic principle of our constitutional scheme. Hence the purpose and intent of your commission ought to have been to address these seminal issues of public interest and restore people’s faith in the System.

This commission has been mandated to inquire whether the leak of these tapes ‘after a long gap of four years reveal any conspiracy’. Conspiracy lies not in the publication howsoever delayed, but in the orchestration of security forces maintained for law enforcement out of public funds to gratify voyeuristic instincts of men in high places.

This Commission has been asked to ascertain the objective considerations while providing ‘discreet security’ to a woman. The defense of ‘discreet security’ was raised by BJP spokespersons after the Gulail expose. A letter purportedly written by the father of the woman in question raising a similar plea was also circulated through BJP offices. The Gujarat Government on its part has not issued a single statement till date calling the alleged incident, an act of ‘discreet security.’ Nor has the government produced a shred of paper work to suggest that surveillance was mounted to extend ‘discreet security.’

It is unfortunate that at every point in the notification the issue of surveillance has been hyphenated with the term ‘security’. This begs the question whether it is the job of a Commission of Inquiry to pitch the issues of public concern against the motivated defense of a political party and to give both the same weightage? Can the explanations randomly put forth by the BJP members during TV debates in the defense of its prime ministerial candidate become the basis for framing the scope of the inquiry of this Commission?

Why has the commission been asked to inquire if there was any conspiracy behind the surfacing of the tapes? Does it mean that in any crime that gets reported after a gap of few years, there is an automatic presumption of some kind of a conspiracy behind such report? Doesn’t this amount to attacking the freedom of the press and burdening ordinary journalists with motivated inquiries every time their stories go against those in positions of power?

Now, contrast this with the complete absence of any reference to the alleged role of the Chief Minister who was also holding the Home Ministry during the relevant period in the terms of reference. Nor is there a reference to inquire the role of agencies like State IB and ATS and the alleged violation of license conditions by private telecom companies. Under the existing terms, it is the journalists who have brought to light the alleged acts of illegality of an elected chief minister who are under inquiry and not the chief minister or his deputies who have, as per the recordings, misused state powers and police machinery. An inquiry into the alleged breach of constitutional guarantees, like Article 19 and Article 21, too doesn’t find a mention in the terms of reference.

It is further pertinent to mention here that soon after this Commission was announced Gulail.com released another set of tapes that showed that snooping and illegal surveillance was carried out beyond the boundaries of Gujarat into other states as well (the story was published on December 24 and can be found on our website). The question is whether this Commission has the mandate to conduct its inquiry beyond Gujarat and summon officials from States like Karnataka with whom apparently the Gujarat Home Ministry had communicated with regard to phone tapping of the woman in question? As per my understanding the existing Terms of Reference don’t empower you to take the probe beyond Gujarat. Given the inter-state nature of the alleged illegal surveillance, this Commission does not have jurisdiction to inquire into the matter.

These are the questions for the Commission to ponder over. In my view it will be a travesty if this Commission formed and run with public money defeats the public interest. As a responsible citizen I’m sending herewith a copy of the documentary film ‘The Stalkers’ released by us on November 15, along with 267 phone recordings submitted by GL Singhal to CBI for your kind perusal.

Deponent

Ashish Khetan