A two-member Commission of Inquiry was set up by the West Bengal government to look into the alleged breach of privacy of several individuals both in the government and the opposition parties including journalists, activists, business persons, police officials, and politicians with the help of the spyware, Pegasus, developed by the Israeli cyber-intelligence company NSO Group. The commission consists of former Supreme Court Justice Madan Bhimarao Lokur and former Justice of Calcutta high court, Jyotirmay Bhattacharya.
Reasons for Setting up the Commission
The state announced the appointment of the commission as the Centre did not order any inquiry into the matter. Justifying the appointment of the commission, the notification issued by West Bengal government expressed apprehension that such interception may have landed in the hands of state and/or non-state actors. The inquiry is necessary because as per reports of a global investigation by 17 media organisations, more than 50,000 data leaks have been confirmed. The report is based on data accessed by Paris-based forbidden stories and technical support at Amnesty International’s Security Lab. The report expresses concerns that such an illegal act of spying information might have brought the following consequences:
- total breakdown of public order of the state;
- complete demoralisation of the police force and other security services in the state of West Bengal;
- total loss of public confidence on the police force;
- impingement upon the right of the public, especially journalists, to discuss and report sensitive information and exercise their right of freedom of speech and expression;
- impingement upon the rights of the judiciary and its officers in the process of delivery of justice to the public at large;
- a loss of public confidence on the rights guaranteed to the public under the Indian constitution; and
- a “violation of the rights of public at large including politicians, journalist, activist, and members of the Legislative Assembly as envisaged under the Constitution of India and law of the land.”
Mandate for the Commission
The commission will inquire—
- whether any incidences of reported interception have occurred;
- the role of the state and non-state actors, who were involved in such reported interception;
- the mechanism and/or spyware and/or malware that were being used to effectuate such reported interception;
- whether any software, such as Pegasus of NSO Group Technologies located at Herzliya, Israel, and/or any spyware and/or malware of any other organisation had been in use and/or currently being used to conduct such reported interception;
- the events leading to the occurrence of the incidences of interception of the earlier mentioned category of individuals or public at large, and the information that has been collected, altered, stored, or used and the possession, storage, and further collection and use of such information pertaining to such interception in the hands of state actors and non-state actors;
- the circumstances, including provocations, instigations from any persons/group of persons, if any, leading to the reported interception;
- the details of the victims and/or persons affected;
- if such reported interception is found to be true, to inquire into whether state/non-state actors can, without any express legal provision and/or judicial oversight, carry out the reported interception;
- if such reported interception is found to be true, to inquire into the reasons and/or legality and/or authority and/or raison d’etre (most important reason) provided by such state and/or non-state actors for such reported interception;
- if such reported interception is found to be true, whether such right to privacy of the category of individuals has been affected; and
- any other matter or facts relevant to, ancillary or incidental or connected with its subject of inquiry, including the above questions for which the commission may deem fit and proper to investigate.
The commission has to file the probe report, along with its recommendations within six months from the publication of the notification.
Powers of the Commission
As per Section 4 of the Commission of Inquiry Act 1952, the commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters:
(a) [summoning and enforcing the attendance of any person from any part of India] and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents; and
(f) any other matter which may be prescribed.
Similarly, Section 5 of the same act says—
“Where the appropriate government is of opinion that, having regard to the nature of the inquiry to be made and other circumstances of the case, all or any of the provisions of sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) should be made applicable to a Commission, the appropriate government may, by notification in the official gazette, direct that all or such of the said provisions as may be specified in the notification shall apply to that commission and on the issue of such a notification, the said provisions shall apply accordingly.”
Authority to set up the Commission
Though both central and state governments can set up such commissions, states are restricted by subject matters that they are empowered to legislate upon. However, what matters both politically and legally is who orders an inquiry first.
If the central government sets up the commission first, then states cannot set up a parallel commission on the same subject matter without the approval of the Centre. However, if a state has appointed a commission, the Centre can appoint another on the same subject provided the scope of the inquiry is to be extended to two or more states.
Subjects a Commission can Probe
As per Section 2(a) of the 1952 inquiry commission act, commissions set up by the central government can make an inquiry into any matter related to any of the entries in List I (Union List) or List II (State List) or List III (Concurrent List) in the Seventh Schedule to the Constitution, while Commissions set up by state governments can look into entries in List II or List III.
In setting up the Pegasus inquiry commission, the West Bengal government has cited grounds of ‘public order’ and ‘police’ entries. While these subjects are in the State List, an argument could also be made that the subject matter of the inquiry (mobile phones) essentially falls under the List I, Entry 31 that deals with posts and telegraphs, telephones, wireless, broadcasting, and other like forms of communication. Another dimension of conflict arises as the Information Technology Act falls within the domain of the Union and ‘public order’ is covered in Entry 1 in List II of the Seventh Schedule.
The reports of inquiry commissions are normally tabled in the assembly of a state or Parliament, depending on who constituted it. In the case of the Lokur Commission, set up by the West Bengal government, the government is not bound to make the report public. The findings are not binding on the executive either, but it can be relied upon by courts as evidence.
Quasi-judicial Functions of a Commission
A commission of inquiry has been given powers of a court for some purposes, though it is not a court and its functions are not judicial. This is because—
- there may not be any dispute before the commissions;
- it does not decide anything conclusively but merely gives its findings;
- there is no appeal against its findings;
- it does not follow the adversary procedure but is essentially inquisitorial in its approach;
the Commission of Inquiry Act, 1952, says that any proceedings of a commission shall be deemed judicial proceedings within the meanings of Section 193 and Section 228 of IPC.
It was held in Kiran Bedi vs Committee of Inquiry that a commission of inquiry was a tribunal for the purpose of Article.
Earlier State Commissions
There have been political tussles between a state and the Centre leading to setting up of different commissions of inquiry on the same subject matter. For instance, when Narendra Modi was the Gujarat chief minister, the state government had set up a commission of retired Justices G.T. Nanavati and A.H. Mehta to probe the Godhra train burning and the subsequent riots. The commission gave a clean chit to the state government in its report.
Lalu Prasad Yadav, the then Minister of Railways in the Congress-led UPA government, set up a commission of inquiry on the same subject, under former Supreme Court Justice U.C. Banerjee. The commission reported findings contrary to that of the Nanavati Commission. However, the Gujarat high court later held that the constitution of the Banerjee Commission was illegal since the state-appointed commission was already investigating the issue.
Given the importance of the matter the central government should have ordered a wide-ranging judicial inquiry into the Pegasus scandal so that the nation has an opportunity to get at the truth.
Supreme Court’s Opinion
Responding to a public interest litigation (PIL) filed against the Commission by a NGO, named, Global Village Foundation, the Supreme Court asked the West Bengal government to show restraint and hold off its inquiry as the Apex Court is going to pass a comprehensive order on the issue very soon. The case is under consideration by a SC bench, headed by Chief Justice of India N.V. Ramana.
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