The step taken by West Bengal government to order a Commission of Inquiry to probe the espionage operation through phone hacking by Israeli firm using spyware Pegasus, is a bold move and marks one of the shining moments of India's history. The WB government decided to appoint a Commission consisting of retired Supreme Court Justice Madan B Lokur and former Calcutta High Court Chief Justice Jyotirmay Bhattacharya, to inquire about hacking the phones of a range of prominent individuals including central ministers, political leaders, media and human rights workers and a Supreme court Judge, and it comes as a brilliant decision for many reasons.
As soon as news emerged about the unfortunate espionage scandal, it was expected that the Central government should act with extreme caution and initiate an independent Inquiry under the supervision of the Supreme Court. And that was what the majority of people who are convinced that India can survive only if its democracy and civil rights are protected, yearned for. Despite the fact that Central IT minister Ashwini Vaishnav and deputy minister Prahlad Singh Patel and 18 individuals with close ties to him, were all in the list of those whose data were compromised, the prime minister and the government took a suspiciously cavalier stand both inside and outside Parliament without any readiness to institute an Inquiry about it.
West Bengal chief minister Mamata Banerjee reasoned that the Pegasus spy network has caused damage to the Bengali people and it is because the central governent has not taken any step on this crucial matter - which will impinge on national security and civil freedom - that the state government decided to conduct such a probe.
Under Section 3 of the Commissions of Inquiry Act, 1952, the Central and State Governments have the power to appoint a Commission of Inquiry through a notification in the Official Gazette, once it is of the opinion that an Inquiry is required on any definite matter of public importance.
The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by 6 [each House of Parliament or, as the case may be, the Legislature of the State], by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. The Act also provides that once the Central government appoints a Commission of Inquiry on a matter of public importance, a State Government shall not appoint another Commission to inquire into the same matter, and that the Central Government shall not appoint a Commission on a matter already under probe by a State Government appointed Commission, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.
What makes Mamata Banerjee's decision timely and commendable is the fact that her government appointed an Inquiry in the pendency of a public interest petition before the Supreme court pleading for appointing a committee under the supervision of the apex court to probe the Pegasus espionage, and when the Central government's stand on this prayer is still awaited.
Constitutionally valid decision
The Commissions of Inquiry Act, 1952 empowers State Governments to appoint commissions to investigate incidents related to subjects falling under the State and Concurrent lists in the Seventh Schedule of the Constitution. Pegasus's snooping is an encroachment on the fundamental right to privacy guaranteed by the Constitution and a threat to the security and peace of the citizens. And that makes Mamata government's action quite in line with law.
Mamata Banerjee has repeatedly accused the Union Government of interfering in the powers of the state government in defiance of the federal system. If the Prime Minister or his party alleges that Bengal government has interfered in the affairs of the union government by appointing a commission on the Pegasus issue, that position won't hold water as per the constitution.
During the emergency, a writ petition was filed in the Madras High Court challenging the Union Government's order to appoint a commission to probe the corruption allegations against then chief minister of Tamil Nadu, M Karunanidhi. The court rejected the petition, upholding the Union Government's order.
It is crucial to find out who are the villains who created an opportunity for a foreign spy agency to infiltrate, violating the security of the country and the constitutional rights of civil society. The Union government should have taken the initiative to fix that guilt. Absent such a step by Union Government, state governments, who respect privacy and the rule of law, will certainly have to intervene. In the days to come, we will see who all fear the courageous and patriotic action of the Mamata Banerjee government in West Bengal.
(The author is former Director General of Prosecutions, Kerala)