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West Bengal’s Commission of Inquiry on Pegasus seeks information from public, lists submission requirements

Besides inviting statements on Pegasus, the commission laid down certain specifics it requires along with the statements and defined the scope of the inquiry. 

The Justice Lokur and Justice Bhattacharya Commission constituted by the West Bengal government last month has issued a public notice inviting statements containing information as a part of its inquiry into the reported use of the Pegasus spyware and related matters. The notice, issued yesterday, appeared in several mainstream English and regional language newspapers, invites statements to be submitted within 30 days (September 2, 2021).

The notice asks for emails to be sent to lokur.jb-coi@bangla.gov.in and provides the following mailing address: 
Justice Lokur and Justice Bhattacharya Commission of Inquiry, located at NKDA Building at 001, Major Arterial Road, New Town, Kolkata-700156

Why it matters? The Commission of Inquiry has to submit a report on its findings within six months or more to the West Bengal government and can summon various government officials as part of its inquiry. Last month, investigations carried out by a consortium of 17 news organisations worldwide revealed that 300 Indians have been listed as persons of interest for Pegasus surveillance by clients of the Israeli firm NSO Group. These potential targets include Congress leader Rahul Gandhi, former Karnataka chief ministers HD Kumaraswamy and Siddaramaiah, among other opposition leaders, lawyers, bureaucrats, private sector professionals, activists, journalists, and officials in the Election Commission and Supreme Court. According to experts, the purported use of Pegasus violates Indian laws on hacking and the fundamental right to privacy declared by the Supreme Court in 2018.

Requirements for making submissions

The notice issued by the commission says that –

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“Notice is hereby given that all individuals, group of persons, associations, institutions and organisations acquainted with or having knowledge directly or indirectly, of the facts and circumstances relating to the matters referred to the Commission in its Terms and Reference and having interest in the proceedings before the Commission, may furnish their statement relating and relevant to the aforementioned matter to the Commission personally or through registered speed post or courier or electronic mail.”

However, the commission also lists certain specifics it requires along with the statements being submitted such as:

  • Verification affidavit: Every statement shall be accompanied by an affidavit signed in support of the contents of the statement which will be issued by the person before a “Metropolitan Magistrate or Judicial Magistrate 1st class or a Commissioner of Oath or any other person authorised by law to administer oaths.” The notice also provides the text by which the officer will declare the document as verified and the content of the oath that will be administered.
  • Declaration of source of information: Every statement shall be accompanied by a declaration of the source of the information. This will include the name and contact information of the person or organisation that is the source. Although, the notice says that wherever such information is ‘privileged or protected by law ‘the exact nature of these privileges and protections will be stated.
  • Term of Reference: Every statement shall be accompanied by the exact Term of Reference to which the statement is related (terms of reference outline the functions of a commission).
  • English translation: Every statement that isn’t in English should be accompanied by an English translation authenticated by an advocate or magistrate.
  • Indexed list of documents: Every statement shall be accompanied by an indexed list of documents, if any, that is being referred to or relied upon in their statement. The person making the statement should also, if possible, furnish or forward the originals of the documents to the commission and state the name and contact details of the person from whom they could get the rest of the documents.

Scope and functions of the commission

According to the public notice, the commission was formed on July 26, 2021, under sub-section 1 and 2 of section 3 of the Commission of Inquiry Act 1952. The commission also has to submit a report on its findings on the matter to the West Bengal government within six months or more.

In the notice, the committee says it has been formed to investigate the “facts and circumstances related to reports that the mobile telephones of several police officials, politicians, MLA’s, journalists, activists, members of the judiciary, members associated with the judicial services, and other eminent personalities  in the state of West of Bengal were illegally intercepted.”

The notice further enlists the terms of reference provided for the commission as mentioned below:

  1. Whether interception occurred: To enquire into whether any incidences of reported interception have occurred.
  2. Who was involved: To enquire into the state and non-state actors who were involved in such reported interception.
  3. What mechanism was used: To enquire into the mechanism and/or spyware and/or malware that were being used to effectuate such reported interception.
  4. Whether Pegasus was used: To enquire into 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.
  5. What happened to the data: To enquire into the events leading to the occurrence of the incidences of interception, 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
  6. Whether there are any precursors: To investigate into the circumstances including provocations, instigations from any persons/group of persons, if any, leading to the reported interception.
  7. Who was affected: To enquire into the details of the victims and/or persons affected;
  8. Role of those involved in interception: To enquire into the role of other authorities and/or State and/or non- State actors in such interception.
  9. Whether it is legal: If such reported interception is found to be true, to enquire into whether State/non-State actors can, without any express legal provision and/or judicial oversight, carry out the reported interception.
  10. Whether privacy been breached: If such reported interception is found to be true whether such right to privacy of the category of individuals has been affected;
  11. Investigating any connected matters: To examine any other matter or facts relevant to, ancillary or incidental or connected with its subject of inquiry including the above questions which the committee may deem fit and proper to investigate

Increasing demands for an investigation into Pegasus

July 22:

  • Lok Sabha MP Thol. Thirumavalavan issues a statement urging the central government to order an independent judicial investigation into the Pegasus controversy.
  • Advocate ML Sharma files a petition seeking an SIT-monitored probe into Pegasus.

July 24:

  • Shashi Tharoor in an interview to The Wire says that “the best thing would be to appoint a sitting Supreme Court judge to head an independent inquiry” on the matter.
  • John Brittas, a Rajya Sabha Member of Parliament from the Communist Party of India (Marxist), files a petition in the Supreme Court seeking a probe into the Pegasus spyware controversy.

July 25: Congress leader P. Chidambaram urges the government to either call for a joint parliamentary committee probe or request the Supreme Court to appoint a sitting judge to investigate the matter.

July 27: Senior journalists N Ram and Sashi Kumar approach the Supreme Court for an independent inquiry headed by a sitting or retired Supreme Court judge.

August 3:

  • Former Bihar Chief Minister Jitan Ram Manjhi tweets in favour of a probe into the Pegasus controversy.
  • Editors Guild of India moves Supreme Court seeking a court-monitored Special Investigation Team probe of the Pegasus controversy.

August 4: Chief Minister of Bihar Nitish Kumar demands an investigation into the Pegasus controversy.

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I cover health technology for MediaNama, among other things. Reach me at anushka@medianama.com

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