While the Modi government at the Center has not yet spoken of any investigation into the spying of politicians, officials and journalists using Pegasus spyware, the Mamata Banerjee government of West Bengal has called for this "to get to the bottom of the matter". A two-member commission has been constituted.
Former Supreme Court judge Madan Bhimrao Lokur and former Calcutta High Court Chief Justice Jyotirmoy Bhattacharya are members of the inquiry commission and have been given six months to submit their reports.
According to the Government of West Bengal, this decision has been taken under 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.
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's election strategist Prashant Kishor were 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 interest, 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 starting this investigation that the central government has not taken any initiative to investigate this matter.
The Mamata Banerjee government says that if the allegations of interception are found to be true, then it directly affects the police and public system of the state and both these subjects come under the purview of the state government's work under Schedule 7 of the Constitution of India.
At the same time, the state government has said that this matter also affects the powers and privileges of the state government and the members of the West Bengal Legislative Assembly and both these subjects come under the list of business of the state. The West Bengal government has also said that this matter is also related to criminal law, which is a subject of the Concurrent List.
The main task of the commission set up by the West Bengal government will be to find out whether there has been any incident of reported interception. Also, the commission will interrogate government and non-government people who were involved in such alleged interceptions. The commission will also investigate the system, spyware or malware that was being used for such interception.
The commission will also investigate whether any spyware or malware from 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 affected persons and find out whether the right to privacy of the people has been affected. The commission has also been given the task of investigating any other matter or facts related to this matter.
Former Supreme Court judge Justice AK Ganguly says that since this matter of interception is completely under the central list, the state government cannot constitute the commission and by 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, 1952 and section 3 talks of "appropriate government". What is an appropriate Government as defined under section 2(a) of the Act?
According to Section 2(a) of the Commission of Inquiry Act, 1952, the Central Government is the "appropriate Government" to inquire into any matter listed in List 1, 2 or 3 in the Seventh Schedule to the Constitution. Similarly, the State Government is an "appropriate Government" if the subject of inquiry is listed in List 2 or 3 in the Seventh Schedule of the Constitution.
In the Seventh Schedule of the Constitution, the Central Government can take decisions on the subjects of List I and the State Governments on the subjects of List II. List 3 is the Concurrent or Concurrent List on which both the Central and State Governments can take decisions.
Justice Ganguly says, "Interception means interception in communication systems. Posts and telegraph, telephone, wireless, broadcasting and other means of communication come under the purview of the Central Government. It is outside the purview of the State Government."
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