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Pegasus probe: Show restraint and wait before proceeding with judicial inquiry, Supreme Court tells WB govt

Supreme Court of India
Credit: Aditi Agrawal

In this hearing, the petitioner objected to parallel inquiries while the West Bengal government asserted that the Supreme Court should not listen to a petitioner whose motives were not clear.

“In all fairness, we expect you can wait,” said the Chief Justice of India NV Ramana while hearing the petition challenging the constitution of a judicial panel by the West Bengal government to investigate Pegasus-related allegations, LiveLaw tweeted. The Supreme Court of India also decided to club the petition along with other petitions on Pegasus which will be taken up next week. 

An investigation by the Pegasus Project, a consortium of 17 news organisations led by Forbidden Stories and Amnesty International, exposed that more than 50,000 phone numbers were identified as either targets or potential targets of Pegasus spyware developed by the NSO Group. These numbers belonged to journalists, politicians, activists, bureaucrats, heads of state, among others. The group, however, responded that the spyware is sold only to vetted governments and its agencies to neutralize terrorists and criminals.

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The Indian government did not order an investigation into surveillance carried out by the Pegasus spyware despite the purported surveillance causing several violations of law. Moreover, the Centre has neither confirmed nor denied purchasing the spyware or using it. The probe ordered by the West Bengal government was the only investigation ordered by a government in India. The state government cited the Centre’s inaction as one of the reasons behind establishing the judicial commission. 

What was discussed in the hearing? 

LiveLaw reported that the petitioner (Global Village Foundation) was represented by Senior Advocate Harish Salve and the respondent (West Bengal government) by Dr Abhishek Manu Singhvi.

Petitioner’s arguments

  • The submission by Harish Salve argued that a “parallel inquiry” cannot take place when the Supreme Court is considering the matter. 
  • He contended that the notification was beyond the competence of the State Government as issues relating to the Information Technology Act fell within the domain of the Union Government.
  • He requested the bench to ensure that the commission does not continue its proceedings after it sought information from the public. 

WB government’s rejoinder

  • Dr.Singhvi challenged the locus of the petitioner
  • He alleged that the NGO had political affiliations. 
  • He asserted that the bench should not listen to an NGO whose motives were not clear and steer clear of a statutory order.
  • Singhvi declared: “Between now and next week nothing earth shattering is going to happen. Any word from your lordships will create a splash.” 

Observations of the bench comprising CJI NV Ramana and Justice Surya Kant

  • The petition will have a bearing as it was connected to other petitions and Justice Surya Kant added that the petition will have a “pan India impact”. 
  • It expected the WB Government to “show restraint” and wait before proceeding with the judicial inquiry.
  • CJI warned Dr AM Singhvi that the SC will be forced to pass an order due to his repeated request to not pass an order. 
  • They did not order a stay on the functioning of the commission after Dr. AM Singhvi assured SC that its instructions will be passed on to the state government.
  • The bench will pass a comprehensive order next week.

What happened during the first hearing? 

  • Solicitor General Tushar Mehta labelled the probe as unconstitutional in his prima facie observation
  • The NGO’s advocate Saurabh Mishra argued then that the SC must stay the proceedings of the commission “to avoid parallel inquiry” as an expert committee was being considered to examine all aspects of the Pegasus controversy in a bunch of other petitions.
  • The Court, however, refused to stay the panel’s inquiry after Justice Surya Kant remarked that the commission is only taking “preliminary steps”.
  • The SC then issued notices to the Union and WB governments seeking their response to the petition. 

A brief summary on the Retired Justice Lokur-led commission

The Mamata Banerjee-led government constituted a judicial panel in a notification on July 27, 2021, to conduct an investigation into the Pegasus snooping scandal following reports in The Wire stating the mobile phone of election strategist Prashant Kishor was hacked using Pegasus. He was responsible for devising Trinamool Congress’s strategy in the 2021 assembly elections. The report added that West Bengal Chief Minister Mamata Banerjee’s nephew Abhishek Banerjee’s phone number was also “selected as a potential snoop target”. 

The two-member Commission of Inquiry included Retired SC Justice Madan Lokur and retired chief justice of Kolkata High Court Jyotirmoy Bhattacharya

Mamta Banerjee said that she was constituting the commission “in exercise of the power conferred under the Sec 3 of the Commission of Inquiry Act, 1952” in a press conference. 

She said that the role of the commission will be to:

  • Identify who has been hacking into the phones of West Bengal’s citizens
  • Investigate how this illegal operation is being perpetrated
  • Examine how speech is being stifled

The commission went on to issue a public notice on August 5 inviting statements containing information regarding Pegasus to be submitted within 30 days. The notice was published in several mainstream English and regional language newspapers.

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