Pegasus scandal: Questions over Mamata’s Commission of Inquiry
Satya Prakash
Tribune News Service
New Delhi, July 27
As the West Bengal government sets up a commission of inquiry led by former Supreme Court judge Madan B Lokur to look into alleged snooping on politicians, journalists and activists, legal experts are divided over the necessary legal backing of the decision.
The West Bengal government notification on Monday said the snooping on eminent personalities involved “a potential threat to breach of state secrets, jeopardising law and order situation in the state and breach of privacy of the above class of citizens”.
The notification attempts to bring it within the ambit of public order under Entry 1 of List II in the Seventh Schedule.
However, Entry 31 of List I of the Seventh Schedule lists “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” as subjects meant for the Union.
Senior advocate Vikas Singh said Pegasus snooping was very much covered under “public order” as the term has wider connotation.
“In fact the Supreme Court should take suo motu cognisance of the matter and order a probe as right to privacy was declared a fundamental right by the court itself. Now that a petition has been filed, the court must look into the matter,” Singh said.
However, Supreme Court advocate and cyber law expert Virag Gupta said digital surveillance has two aspects – Information Technology Act which falls within the Union’s domain and “public order” which is covered in Entry 1 in List II of the Seventh Schedule. There appears to be a conflict which needs to be resolved.”
Section 3 of the Commission of Inquiry Act, 1952 simply says, “The appropriate government may, if it is of opinion that it is necessary so to do…”
It means both the Centre and states can institute an inquiry under the Act.
However, Section 2(a) says “appropriate government” means— (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution.
A reading of Section 2(a) of the Act gives an impression that a state government can’t set up a commission of inquiry to look into a subject enumerated in the Union List.
Since the entire controversy surrounds possible tapping/monitoring of phones of politicians, journalists and activists, a state government’s claim to have jurisdiction over the issue entirely depends upon its ability to prove that the subject is covered under the expression “public order”.
According to the Act, if the Central government has ordered such an inquiry, “no state government shall, except with the approval of the Central government, appoint another commission to inquire into the same matter for so long as the commission appointed by the Central government is functioning.”
Similarly, if a state government has ordered an inquiry, “the Central government shall not appoint another commission to inquire into the same matter for so long as the commission appointed by the state government is functioning, unless the Central government is of opinion that the scope of the inquiry should be extended to two or more states”.
However, this is aimed at avoiding any possible conflict with regard to subjects listed in the Concurrent List on which both are entitled to set up commissions of inquiry.
Section 3(1)(b) says if the Central government is of opinion that the scope of the inquiry should be extended to two or more states, it can set up a Commission of Inquiry overriding the one appointed by a state government.
