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Supreme Court stays proceedings of Justice Lokur-led commission investigating Pegasus

Over 21 entities and persons were asked to appear before the commission in connection with the Pegasus controversy.

The Supreme Court of India has stayed the enquiry being conducted by a Judicial Commission led by former SC judge Madan B Lokur, according to a report in the Times of India. The commission was set up by the West Bengal government to investigate the snooping allegations using Pegasus spyware which came to the fore in July this year.

The bench comprising Chief Justice of India NV Ramana, Justice Surya Kant, and Justice Hima Kohli, expressed its displeasure over the commission continuing its inquiry despite the Supreme Court constituting an independent committee to look into the allegations, TOI wrote in its report.

Why this matters: The probe ordered by the West Bengal government was the only investigation ordered by any government in India into the Pegasus controversy. The state government cited the Central Government’s inaction as one of the reasons behind establishing the judicial commission.

An investigation by the Pegasus Project, a consortium of news organisations, exposed that more than 50,000 phone numbers were either targets or potential targets of Pegasus spyware developed by an Israeli company— NSO Group. Over 300 Indian phone numbers were also included in the database. These numbers belonged to political leaders, journalists, human rights activists, businessmen, military officials, intelligence agency officials, and many others.

What happened during the course of the latest hearing?

Senior Advocate Harish Salve, representing the petitioner— Global Village Foundation Charitable Trust, submitted that they are challenging the proceedings of the West Bengal commission. The commission had earlier sent out notices to political analyst Prashant Kishor, Congress politician Rahul Gandhi, and Amnesty International, among several others.

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CJI NV Ramana asked Senior Advocate Dr Abhishek Manu Singhvi, appearing for the State of West Bengal, about the oral undertaking assuring the bench that the WB government will not let the commission conduct any business, according to a LiveLaw report.

“Mr Singhvi, what is this? Last time you gave the undertaking. We wanted to record; you said: don’t record. Again you started the inquiry?” CJI was quoted as saying by LiveLaw.

Singhvi informed the SC that the state government cannot control the commission. He clarified that he had only offered to convey the directions of the SC last time and did not claim to control the commission. He then asked the bench to call the counsel of the commission and pass orders, the report revealed.

“We understand the state’s predicament. Issue notice to all parties. We stay proceedings,” LiveLaw reported. The bench also granted permission to implead the secretary of the commission in the case, the report added.

Why was an interim order issued?

A total of 21 entities and persons were served notices to appear before the commission in November this year. Here is a list of people who were issued notices:

  • MK Venu and Siddharth Varadarajan: Venu and Vardarajan are founding editors of The Wire which was part of an international consortium of media organisations that was the first to report on potential targets (including 300 Indians) of Pegasus surveillance by clients of the NSO group.
  • Paranjoy Guha Thakurta: Journalist Thakurta’s phone was among those infected with Pegasus spyware, The Wire report said.
  • SNM Abidi: He was also among those who were confirmed to be hacked by Pegasus, according to a report by The Wire.
  • Abhishek Banerjee: Trinamool Congress politician and nephew of West Bengal CM Mamata Banerjee, Abhishek’s number was listed as a potential target
  • Tony Jesudasan: Reliance ADA Group’s corporate communication chief Tony Jesudasan and his wife’s numbers also figured in the list in 2018.
  • Venkat Rao Posina: Dassault Aviation’s India representative Venkata Rao Posina developed a “reputation for ferociously defending the Rafale deal to the point of apparently getting into verbal altercations with journalists on Twitter”. His number was included in the leaked database between 2018 and 2019.
  • Harmanjit Nagi: Nagi, who is head of the French energy firm EDF, was “a significant choice” for snooping because he was a member of Emmanuel Macron’s official delegation during the French president’s visit to India in the 2018-2019 period.
  • Pratyush Kumar: Boeing India boss Kumar‘s number appeared in the leaked database of potential targets of Pegasis at different periods of time in 2018 and 2019, The Wire report said.
  • Anjani Kumar: Kumar is a Delhi-based labour rights activist who was a potential target of the spyware, according to a New Indian Express report.
  • Shiv Gopal Mishra: Railway union leader Shiv Gopal Mishra was also a potential target.
  • Rajeshwar Singh and Abha Singh: Singh is the sister of Rajeshwar Singh, a senior Enforcement Directorate Officer who was a possible target of Pegasus. Rajeshwar led several high profile investigations such as the 2G spectrum case, Aircel-Maxis case, and so on.
  • Hany Babu: The phone number of Professor Hany Babu who along with eight activists, was arrested for their involvement in the Elgar Parishad case also figured in the list of potential targets.
  • Rakesh Asthana: Senior CBI official Asthana along with another CBI official AK Shama, and agency chief Alok Sharma figured in the list as potential targets
  • Rakesh Tiwari: The number of Tiwari, who is the current president of the Bihar Circket Association was added to the database in 2018, according to The Wire.
  • Citizen Lab: The University of Toronto’s Citizen Lab conducted a peer review of Amnesty’s findings.
  • Chief Secretary West Bengal government

Out of the 21, only five have responded to the notices including journalist Paranjoy Guha Thakurta and Citizen Lab. This is what prompted the NGO to approach the SC last week and the matter was heard on December 17.

What happened in the last hearing?

In the last 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,” the Chief Justice of India NV Ramana had said during the hearing.

Some of the petitioner’s arguments were:

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  • 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.

The bench did not order a stay on the functioning of the commission last time after Dr. AM Singhvi assured SC that its instructions will be passed on to the state government. The first hearing of this case saw Solicitor General Tushar Mehta referring to the probe as unconstitutional in his prima facie observation.

What was the commission expected to probe?

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

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I cover several beats such as crypto, telecom, and OTT at MediaNama. I will be loitering at my local theatre and consuming movies by the dozen when I am off work.

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