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Who will take the lead?

Posted in Featured, View Point

Published on August 09, 2021 with No Comments

Israel, the origin country of the cyber weapon has launched an inquiry. There were even raids on the firm that owns NSO. France has also ordered an inquiry into the Pegasus row. Despite being one of the largest democracies, India is unwilling to probe into allegations of surveillance using advanced spyware on potential Indian targets.  Members of the ruling party Bhartiya Janta Party (BJP) are also being spied on, but the government has ruled out the possibility of ordering a probe. Despite the fact that India is a country where a government was brought down after two policemen were seen snooping around former Prime Minister Rajiv Gandhi’s residence.

What more evidence the Indian government wants to look at ? Forensic examination of the handsets has revealed that fifty percent of them are breached by Pegasus. And that’s just the tip of the iceberg as the potential of such cyber weapons are far more deadlier than what it has been able to do so till now. The NSO has made it clear that they sell the spyware only to governments.

The reluctance of the Narendra Modi government to initiate a probe, prompted the West Bengal government led by Mamta Banerjee to order a judicial probe. Going by Chief Minister affinity for her endless run-ins with the Centre, it may be easy to dismiss this act of the State government as a political opportunism. However, since the centre and the ruling party BJP has been aggressive in refusing any kind of inquiry of probe in the misuse of the Pegasus spyware, the inquiry by West Bengal government has legal sanity and political importance too.  The notification attempts to bring it within the ambit of public order under Entry 1 of List II in the Seventh Schedule. Also,  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. Snooping is very much covered under “public order” as the term has wider implication. 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”.

The two member commission comprising of Justice Madan B.  Lokur a former judge of Supreme Court and Justice Jyotirmay Bhattacharya, a former Chief Justice of Kolkatta High Court, may have a tough task ahead. It has to be seen how many of the potential targets of the Pegasus spyware may come forward to get their phones forensically examined. Going by the tussle that has always existed between the Centre and the government of West Bengal, Central agencies may not be co-operative or may not be permitted to join the probe.   Therefore, it will be appropriate if the Centre itself orders a wide-ranging judicial inquiry into the Pegasus scandal so that the Indians get to know the truth. However, the Narendra Modi led government seems reluctant to order despite the very fact that the opposition has been stalling the proceedings of the parliament on daily basis and  its allies are also demanding a probe.

At the same time, the Supreme Court of India too can take suo motu cognisance of the matter and order a probe as right to privacy was declared a fundamental right by the court itself.

 

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