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Judicial panel on Pegasus is unconstitutional: Solicitor General Tushar Mehta in SC hearing

The hearing focused on a state-appointed commission whose role is to investigate how the Pegasus surveillance was done, who was involved, and whether it stifles speech. 

“It is unconstitutional,” said Solicitor General Tushar Mehta when the Supreme Court of India (SC) was hearing a petition to quash a two-member commission of inquiry (headed by retired justice Madan Lokur) set up by the West Bengal (WB) government to probe news reports of purported surveillance on Indians using Pegasus spyware, Bar & Bench tweeted. The tweet also said that the SC has issued notices to the WB and Union governments seeking their reply to the petition by the next hearing set for August 25.

The Pegasus Project, a consortium of 17 media organisations led by Forbidden Stories and Amnesty International, carried out an investigation that revealed a data leak of more than 50,000 phone numbers 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 by saying that the spyware is licensed only to vetted governments and its agencies for use against terrorists and criminals. 

The Indian government has not ordered any investigation into the surveillance carried out by the Pegasus spyware despite the extent and implications of such snooping. It has not even confirmed or denied purchasing the spyware or using it. The probe ordered by the West Bengal government is the only investigation ordered by a government in India. In contrast, the French government ordered a national probe within weeks after its president and citizens were featured on the list of potential targets.

What happened during the hearing?

The petition was heard by a bench comprising Chief Justice of India NV Ramana, Justice Surya Kant, and Justice Aniruddha Bose on August 18.  

During the hearing, Saurabh Mishra requested that the bench stay the proceedings of the commission “to avoid parallel inquiry” as the bench was already contemplating an expert committee to examine all aspects of the Pegasus controversy in a bunch of other petitions.

The Court, however, refused to stay the panel’s inquiry. Justice Surya Kant remarked that the commissio is only taking “preliminary steps”, as per a report in Bar & BenchThe report added that the Solicitor General Tushar Mehta would be willing to assist the Court on the issues of constitutionality and legality.  

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Details about the petition 

According to a report in the Hindustan Times, the petition was filed by an NGO called Global Village Foundation Public Charitable Trust. Advocate Saurabh Mishra appeared on behalf of the NGO before the SC. 

The petition stated the Pegasus controversy had cross-border ramifications with footprints in India, and it was imperative to deal with it from a national perspective. 

“Considering the seriousness of the issue and its implications on the citizenry of the country as well as its cross-border implications, the Pegasus controversy warrants an in-depth investigation. This cannot be carried out in a truncated and unconstitutional manner as is sought to be done by the West Bengal government,” HT quoted from the petition.  

Details of the commission set up by the WB government

The West Bengal government constituted a judicial panel in a notification on July 27, 2021, to conduct an investigation into the Pegasus controversy.  The action was taken after a report by  The Wire said that the mobile phone of election strategist Prashant Kishor, who led the Trinamool Congress’ campaign in the 2021 state elections, was hacked using Pegasus. The report also said that West Bengal Chief Minister Mamata Banerjee’s nephew Abhishek Banerjee’s phone number was “selected as a potential snoop target”

The two-member Commission of Inquiry included retired SC judge 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 constituted by the government issued a public notice on August 5 inviting statements containing information as a part of its inquiry into the reported use of the Pegasus spyware and related matters to be submitted within 30 days. The notice was published in several mainstream English and regional language newspapers.

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