What authority can Mamta Banerjee have the Pegasus case investigated?
While the Modi government in the Center has yet to discuss any investigation into the espionage of politicians, officials, and journalists using Pegasus spyware, the West Bengal government of Mamata Banerjee has called for this to "get to the bottom of the matter. ". A two-member commission has been set up.
Former Supreme Court Justice Madan Bhimrao Lokur and former Calcutta High Court President Jyotirmoy Bhattacharya are members of the commission of inquiry and have been given six months to present their reports.
According to the Government of West Bengal, this decision was taken in accordance with Section 3 of the Commission of Inquiry Act 1952 regarding the matter related to the alleged illegal hacking, monitoring, tracking, and recording of mobile phones of persons residing in the state.
Mamta's goal in the Modi government
In the Pegasus spyware controversy, it has been said that during the recent assembly elections in West Bengal, Chief Minister Mamata Banerjee's nephew, Abhishek Banerjee, and during the elections, Banerjee electoral strategist Prashant Kishor, was the target of spyware. In this case, Mamata has already accused the Modi government of "trying to establish a surveillance state."
Describing it as a matter of public concern, the West Bengal government has now said that it is conducting an independent public inquiry to credibly investigate the reported interception.
The West Bengal government has also given a reason for initiating this investigation that the central government has not taken any initiative to investigate this matter.
Mamata Banerjee's government says that if the interception allegations are found to be true, then it will directly affect the police and the state public system and both issues fall within the scope of the state government's work under Annex 7 of the Constitution. from India.
At the same time, the state government has said that this issue also affects the powers and privileges of the state government and the members of the Legislative Assembly of West Bengal and both issues enter the list of state affairs. The West Bengal government has also said that this matter is also related to criminal law, which is a Concurrent List topic.
Pegasus spyware Working and Effects
Under the Commission of Inquiry Act 1952, both the Center and the States can initiate an investigation by forming a Commission of Inquiry. In accordance with the law, if such an investigation has been ordered by the Central Government, no State Government, except with the approval of the Central Government, shall appoint another Commission to investigate the same matter, unless a Commission appointed by the Government is appointed. Central. for him. they are working.
Similarly, if a state government has ordered an investigation, the central government will not appoint another commission to investigate the same matter while the commission appointed by the state government is operating, unless the central government should not be of the opinion that the scope of the investigation extends to two or more states.
Under the Commission of Inquiry Act 1952, such a commission has the powers of a civil court, whereby it can subpoena anyone from anywhere in India by sending subpoenas. Furthermore, said a commission of inquiry is also empowered to search for any document and request any public record or copy thereof from any court or office.
What will be the scope of the Commission of Inquiry?
The main task of the commission created by the West Bengal government will be to find out if there have been any reported interception incidents. In addition, the commission will question governmental and non-governmental individuals who were involved in such alleged interceptions. The commission will also investigate the system, spyware, or malware that was being used for the interception.
The commission will also investigate whether any spyware or malware from the NSO Group's Pegasus or any other organization in Israel was or is being used for interception.
Another main task of this commission of inquiry will be to investigate the circumstances in which this action was taken at the behest of any person or persons.
The Commission of Inquiry will examine the details of the victims and the people affected and will find out if the right to privacy of the people has been affected. The commission has also been tasked with investigating any other matter or fact related to this matter.
Did Mamata violate jurisdiction?
Former Court Judge Suprema, Judge AK Ganguly, says that since this interception issue is completely on the central list, the state government cannot constitute the commission and in doing so the state government has violated its jurisdiction.
They say that these commissions have been established under section 3 of the Commission of Inquiry Act of 1952 and section 3 speaks of "proper government." What is proper government as defined in section 2 (a) of the act?
According to Section 2 (a) of the Investigation Commission Act of 1952, the Central Government is the "appropriate government" to investigate any matter listed in List 1, 2 or 3 of the Seventh Schedule of the Constitution.
Similarly, the state government is "proper government" if the subject of the investigation is listed in list 2 or 3 of the seventh annex to the Constitution.
In the Seventh Annex of the Constitution, the Central Government can make decisions on the issues of List I and the Governments of the States on the issues of List II. List 3 is the Concurrent or Concurrent List on which the Central and State Governments can make decisions.
Judge Ganguly says: "Interception means interception in communication systems. Post and telegraph, telephoneNo, radio, broadcasting, and other means of communication are the responsibility of the central government. It is outside the scope of the state government."
Judge Ganguly says: "The matter concerns telecommunications law and telecommunications are not included in the State List or the Concurrent List."
"Let's assume there's a swindle in a defense pact," he says. "Can the state government look into it?" No, because it has to do with defense, which is under the purview of the federal government. But what if there's a ruse in the material rationing purchase? If this has occurred, the state government can look into why this problem is connected to the state list."
Judge Ganguly had this to say: "The issue of the Commission involves the legitimate government. If you are not the proper government, you do not have any legal authority."
Singh says: "These are the issues that are related to the public order of the state. The issues related to the right to privacy are also a matter of the state. So, from that point of view, as far as the people of the state are concerned. the state is purely a state subject. "It is."
They say that if during this investigation this commission of inquiry gets to know about some things that have happened in other places or they come to know about the espionage of some other people after the report of this commission of inquiry comes the state government. the right to send this report to the government in question so that it takes the appropriate measures at its level.
"These are concerns that are relevant to the state's public order," Singh says. The state is also responsible for matters concerning the right to privacy. So, from that perspective, as far as the state's citizens are concerned. "The subject of the state is purely a state subject." Yes, it is."
He declares: "Any state government, according to the federal government, would not take such a measure. The Center could have established such a panel, and the state would not have had the authority to do so if it had. The study is of no relevance to them. Since the case has reached the Supreme Court, the Court must appoint this commission and put a stop to the jurisdictional dispute.""
Vikas Singh also believes that the Supreme Court should take this case on its own initiative because the right to privacy is a basic right, as the Supreme Court has determined. "It's a really serious subject with potentially grave implications," he says.
What does the Constitution say about this?
Subhash Kashyap, a constitutional expert, weighs in on the subject. He declares: "I believe the terms of reference are excessively broad and include instances that occurred outside of the state. There are some doubts over whether or not this is true."
Kashyap claims that this commission can look at the impact on West Bengal residents, but that it has no authority to look into or enquire into anything outside of its jurisdiction. For example, Kashyap claims that if this commission wishes to interrogate India's interior minister as part of its inquiry, "he will not have the right to do so."
Is it legal for the federal government to sue the commission? "Yes, one can approach the court and argue it is out of jurisdiction," he replied in response to this query. It may be argued that they are straying beyond their state's borders. They'll look to see if specific parameters are being satisfied." crossed."
The West Bengal government, according to Kashyap, looks to go beyond the state's jurisdiction in this case. "The court may look into the legitimacy and scope of the court's authority," he says.
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