Arun Jaitley posted several comments on Twitter as well his blog contesting the appointment of commission by the Central Government in the matter of the unauthorized and illegal tapping and interception of phone calls by Amit Shah through Gujarat Police and Gujarat State Intelligence. His contentions as posted on his blog are as under:
1. The setting up of a parallel Commission by the Central Government ostensibly on the pretext of this issue covering more than one State is without any basis.
2. The setting up of this Commission violates the federal structure of the Constitution.
Both these contentions are contrary to the Statutory provisions of the Commission of Inquiries Act and also contrary to the Constitutional provision on federalism. It is honestly shocking that a lawyer of Arun Jaitley’s eminence can make such absurd propositions which we shall now demonstrate fly in the face of the statutory provisions.
To appreciate the controversy raised by Arun Jaitley, we need to briefly recount the legal provisions for the appointment of a commission. Under section 3 of the Commission of Inquiry Act, the Central Government can appoint Commissions to inquire into matters relatable to matters enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; similarly, the State Government can appoint Commissions into matters relatable to matters enumerated in List II or List III in the Seventh Schedule to the Constitution. All matters relatable to posts, telegraphs, telephones, wireless etc are to be found in entry No. 31 of the Union list that is List-I.
Essentially, what this means is that since the matter is of unauthorized and illegal tapping and interception of phone calls, this matter falls under the purview of List I i.e. Union List and therefore ONLY the Union/Central Government can appoint a Commission in this matter and not the State Government. It is also necessary to state here that the terms of reference framed by the Gujarat Government while appointing the State Commission, have not specifically included the act of interception or tapping of any phone call but has spoken only about security/surveillance provided to the girl. This had been done to avoid trenching into the Jurisdiction of Central Government.
If Arun Jaitley is so convinced about his own arguments, why doesn’t he challenge the order of the appointment in a court of law.