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Sunday, September 19, 2021

West Bengal probes Pegasus: Will the move spoil relations with Centre?

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Rajiv Saxena
Rajiv Prakash Saxena is a graduate of UBC, Vancouver, Canada. He is an authority on eCommerce, eProcurement, eSign, DSCs and Internet Security. He has been a Technology Bureaucrat and Thought leader in the Government. He has 8 books and few UN assignments. He wrote IT Policies of Colombia and has implemented projects in Jordan, Rwanda, Nepal and Mauritius. Rajiv writes, speaks, mentors on technology issues in Express Computers, ET, National frontier and TV debates. He worked and guided the following divisions: Computer Aided Design (CAD), UP: MP: Maharashtra and Haryana State Coordinator to setup NICNET in their respective Districts of the State, TradeNIC, wherein a CD containing list of 1,00,000 exporters was cut with a search engine and distributed to all Indian Embassies and High Commissions way back in the year 1997 (It was an initiative between NIC and MEA Trade Division headed by Ms. Sujatha Singh, IFS, India’s Ex Foreign Secretary), Law Commission, Ministry of Law & Justice, Department of Legal Affairs, Department of Justice, Ministry of Urban Development (MoUD), Ministry of Housing & Urban Poverty Alleviation (MoHUPA), National Jail Project, National Human Rights Commission (NHRC), National Commission for Minorities (NCM), National Data Centres (NDC), NIC National Infrastructure, Certifying Authority (CA) to issue Digital Signature Certificates (DSCs), eProcurement, Ministry of Parliamentary Affairs (MPA), Lok Sabha and its Secretariat (LSS) and Rajya Sabha and its Secretariat (RSS) along with their subordinate and attached offices like Directorate of Estate (DoE), Land & Development Office (L&DO), National Building Construction Corporation (NBCC), Central Public Works Department (CPWD), National Capital Regional Planning Board (NCRPB), Housing & Urban Development Corporation (HUDO), National Building Organisation (NBO), Delhi Development Authority (DDA), BMPTC and many others.



Project Pegasus – The West Bengal Government’s move appointing a Committee on Pegasus episode is a nasty move to embarrass the Central Government and may force the Centre to react on the issue, sooner or later. Till date the Centre has not reacted, but has informed that the matter has become sub judice, and this move is politically loaded and there is going to be head on collision with the Centre as seen in the both houses of parliament and the Telegraph Act is administered by the centre.

It is rumoured that the session may be cut short and adjourned ‘sine die’ early as bills are getting passed with voice vote and TMC has adopted that the democracy is in peril and getting throttled! Even the important bill to scrap the retro tax, passed by the UPA under the then Pranab Dada was given ‘respected burial’.



West Bengal Chief Minister Mamata Banerjee holds up her phone during a press conference at Nabanna on July 22nd, 2021 after announcing that she had plastered her camera to prevent phone tapping! This was after she created a great furore during the elections, when she blamed one and all that her foot got injured and she drove down 150 km to Kolkata to get her leg plastered by her paid doctors and loudly declared ‘Khela Hobe’, where a mayhem started after the election results were announced, ‘just less than a pogrom to be precise’.



The West Bengal Government has set up a Commission of Inquiry into the alleged surveillance of imaginary phone numbers using the Pegasus malware developed by the Israeli cyber-intelligence company NSO Group, named after the first alphabet of the name of 3 scientists, like the another masterpiece encryption software giant RSA, named after its 3 developers Ron, Shamir and Addleman especially for both symmetric and asymmetric encryption in order to create digitally signed certificates.



The Commission, comprising former Supreme Court justice and chief justice of erstwhile undivided Andhra Pradesh Dr. Madan B Lokur and former Calcutta High Court Justice Jyotirmay Bhattacharya, will look into the alleged breach of privacy of several ‘so called individuals’, in the fake list of left oriented journalists, anti-national activists, businesspersons, tainted police officials, politicians both in the government and the opposition.



What is its mandate? 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.” This mandate is totally wrong. The malware sent ‘spear phishing’, attacks based on the social interests of the person attacked. There is no interception in such attacks. Period.



The notification said, reports that are part of a global investigation by 17 media organisations drawing on data accessed by the Paris-based Forbidden Stories are a “definite matter of public importance”. What a sad day when Amnesty International, which has been thrown out of India for its nefarious activities, will dictate the running of the Indian Parliament! This NGO is funded by the British Parliament and creates trouble in foreign countries world over in the name of Human Rights.



What are its powers? Under The Commissions of Inquiry Act, 1952, a Commission set up by the Government shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908. This means that the Commission has powers to summon and enforce the attendance of any person from any part of India and examine him / her / it, 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.



Why has a state government set up the Commission? While both central and state governments can set up such Commissions of Inquiry, states are restricted by subject matters that they are empowered to legislate upon. However, it matters who orders an inquiry first. Not just politically, but also under the law. If the central government sets up the commission first, then states cannot set up a parallel commission on the same or similar 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, corrected, enlarged or enhanced or added to two or more states.



The West Bengal government’s move appointing a committee first may force the Centre to react on the issue. They may remain to be silent too. The commission has been set up to earn ‘brownie’ points. In the past, 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. In the year 2002, when Narendra Modiji was the Gujarat Chief Minister, the state government has set up a Commission of retired Justices G T Nanavati and A H Mehta to probe the Godhra train burning and the subsequent riots, in the state. The Commission later gave a clean chit to the state government in its report.



It is well known that the rail bogey in which the Kar Sewaks were travelling was burnt by sprinkling both kerosene and petrol and Hindu Kar Sewaks coming back from Ayodhya were roasted alive and charred beyond any recognition. All four doors were locked from outside. My parents had gone to the Dwarka Ranchod Dasji temple and had to rush back in middle of their pilgrimage with detour, as atmosphere of fear and distrust enveloped the whole state, which was started by the ‘peaceful community’.



In 2004, Lalu Prasad Yadav, now on bail in the ‘chara ghotala’, then Union Railways Minister in the Congress-led UPA government, constituted a Commission of Inquiry on the same subject, under former Supreme Court Judge U C Banerjee. The Banerjee Commission reported findings contrary to that of the State Commission, to embarrass the Modi Government in Gujarat. However, the Gujarat High Court later held that the constitution of the Banerjee Commission was illegal, and quashed its conclusions since the state-appointed Commission was already looking into the issue.



What kind of subjects can a Commission probe? Under Section 2(a) of the 1952 Act, Commissions set up by the central government can make an inquiry into any matter relatable 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 only.



In the Pegasus inquiry Commission, the West Bengal government has cited 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 essentially falls under the Central List.



Entry 31 of the Union List or List I deals with posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication. The report submitted by this commission may not be binding on the Central Government.



What value does such a Commission’s report have? The findings of such commissions are normally tabled in the Assembly or Parliament, depending on who constituted it. The West Bengal government has tasked the Lokur Commission to submit a report within six months. However, the government is not bound to make the report public. The findings are not binding on the executive either, but can be relied upon by courts as evidence, at a later date.



The author has interacted with Justice Lokur during the period, when he was the Chief Justice of undivided Andhra Pradesh and had interacted extensively with him even in New Delhi. The eVisitor system implemented at both Delhi High Court and Supreme Court was implemented along with the ‘interoperable criminal justice system’, (ICJS), which was the brain child of the author.


Now anti-national press, under the tutelage of the ‘Editors Guild of India’, has also joined in. ‘We are pleased to share that the Editors Guild of India has filed a writ petition in the Supreme Court of India, with respect to the media reports on surveillance and hacking of phones of several journalists using the Pegasus software, created and developed by the Israeli company NSO’.


The Guild has sought the Court’s direction for:

Setting up of an independent SIT to investigate the facts regarding the extent and intent of snooping;

A direction to the Government of India for furnishing information on the interception, monitoring and decryption of information by using spyware, hacking and/or electronic surveillance in India between 2017 to the present day in 2021 (including details of contracts, list of agencies, details of spyware used, payments made for licenses and purchases, etc.);


Issuing guidelines for safeguarding journalists from surveillance, and

To declare provisions of Indian Telegraph Rules, 1885, as well as of IT Act, 2000 that allow such surveillance as unconstitutional.



Senior journalist, Ms. Mrinal Pande, is a co-petitioner in this PIL.

Similarly on Friday July 30th 2021, the Supreme Court agreed to hear a petition filed by journalist N. Ram and Shashi Kumar over the alleged snooping scandal by the Modi government against the ‘142 prominent journalists’, using Israeli spyware Pegasus. N. Ram is the famous journalist who forged the Rafale documents to defame the Modi Government.


The report as and when published is nothing but an embarrassment report for the Modi Government.



My question is if the Telegraph Act is administered by the central government, does the Commission will hold any legal ground, but the activism oriented judiciary may have its own way. Period. These acts will be show the true colours of the authors for sure!



No government is evil or holy. It is a known fact the similar story came during the period when Shri Pillai was the Home secretary. National interest are of paramount importance, while the political bickering, public shaming and one-upmanship will continue forever.

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Rajiv Saxena
Rajiv Prakash Saxena is a graduate of UBC, Vancouver, Canada. He is an authority on eCommerce, eProcurement, eSign, DSCs and Internet Security. He has been a Technology Bureaucrat and Thought leader in the Government. He has 8 books and few UN assignments. He wrote IT Policies of Colombia and has implemented projects in Jordan, Rwanda, Nepal and Mauritius. Rajiv writes, speaks, mentors on technology issues in Express Computers, ET, National frontier and TV debates. He worked and guided the following divisions: Computer Aided Design (CAD), UP: MP: Maharashtra and Haryana State Coordinator to setup NICNET in their respective Districts of the State, TradeNIC, wherein a CD containing list of 1,00,000 exporters was cut with a search engine and distributed to all Indian Embassies and High Commissions way back in the year 1997 (It was an initiative between NIC and MEA Trade Division headed by Ms. Sujatha Singh, IFS, India’s Ex Foreign Secretary), Law Commission, Ministry of Law & Justice, Department of Legal Affairs, Department of Justice, Ministry of Urban Development (MoUD), Ministry of Housing & Urban Poverty Alleviation (MoHUPA), National Jail Project, National Human Rights Commission (NHRC), National Commission for Minorities (NCM), National Data Centres (NDC), NIC National Infrastructure, Certifying Authority (CA) to issue Digital Signature Certificates (DSCs), eProcurement, Ministry of Parliamentary Affairs (MPA), Lok Sabha and its Secretariat (LSS) and Rajya Sabha and its Secretariat (RSS) along with their subordinate and attached offices like Directorate of Estate (DoE), Land & Development Office (L&DO), National Building Construction Corporation (NBCC), Central Public Works Department (CPWD), National Capital Regional Planning Board (NCRPB), Housing & Urban Development Corporation (HUDO), National Building Organisation (NBO), Delhi Development Authority (DDA), BMPTC and many others.
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