Kolkata: With the Supreme Court appointing an independent expert technical committee to examine allegations that the government used Israeli spyware, Pegasus, the future of the two-member commission, formed by the West Bengal government three months before, to probe the issue is unclear.
Though the State commission is yet to come out with an official statement, a section of legal experts believes that after the formation of the committee by the apex court, it has lost its relevance.
The two-member commission comprising former Supreme Court judge, Justice Madan B. Lokur, and former Calcutta High Court Justice Jyotirmay Bhattacharya, met on Thursday to decide their future course of action but declined to speak anything on the issue.
Chief Minister Mamata Banerjee had set up the commission of inquiry into the alleged surveillance of phones using the Pegasus spyware developed by the Israeli cyber-intelligence company NSO Group. It was look into the alleged breach of privacy of several individuals – journalists, activists, businesspersons, police officials, politicians – both in the government and the opposition.
According to the notification issued by the West Bengal government, the commission will “enquire into and report on inter alia the reported interception and the possession, storage and use of such information collected through such interception, in the hands of State actors and non-State actors.”
The commission, set up under the Commissions of Inquiry Act, 1952, was given powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908. This means that it had powers to summon and enforce the attendance of any person from any part of India and examine him or her on oath, and receive evidence, and it can order requisition of any public record or copy from any court or office.
Under Section 5 of the Act, the commission also has the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters that, in the opinion of the commission, may be useful for, or relevant to, the subject matter of the inquiry.
According to political experts, Banerjee’s move to form the commission was an effort to force the Centre to react. Though both the Central and state governments can set up such commissions of inquiry, states are restricted by subject matters that they are empowered to legislate upon.
According to the legal provisions, it matters who orders an inquiry first. If the Central government set up the commission first, then states cannot set up a parallel commission on the same subject matter without the approval of the Centre. But if a state has appointed a commission, then the Centre can appoint another on the same subject if it is of the opinion that the scope of the inquiry should be extended to two or more states.
However, a section of the legal experts believe that the state commission cannot run simultaneously with the committee formed by the Supreme Court.
“The state cannot form this kind of commission legally but the state government has formed the commission under the Commissions of Inquiry Act 1952. The committee the Supreme Court has formed is not under the Act, but it is on the basis of powers vested on the Supreme Court,” former Supreme Court judge Asok Kumar Ganguly said.
“The committee has been formed under Article 142 of the Constitution. If this committee functions, then I cannot understand how the illegal (according to me) commission formed by the state can function. This is not tenable under the Constitution of India,” he added.
However, Trinamool Congress MP and Supreme Court lawyer Kalyan Banerjee contended: “The two can function simultaneously. There is no problem in the functioning of the two commissions.”
