The Supreme Court has asked the West Bengal government on Wednesday to ‘show restraint’ and not proceed with a judicial enquiry on the Pegasus snooping scandal since the apex court is also hearing the matter.
The apex court did not however pass an order issuing a stay against the state appointed judicial commission set up by the Mamata Banerjee led government to probe the allegation of snooping on politicians, activists, journalists and other citizens using the Israeli spyware Pegasus, said media reports.
The order was not given after an oral assurance by senior advocate Dr Abhishek Manu Singhvi that he would pass on the court’s message to the West Bengal (WB) government.
This was part of the proceedings during a hearing by the SC bench comprising Chief Justice N V Ramana and Justice Surya Kant on a plea made by an NGO Global Village Foundation. The NGO had challenged the WB government’s move to institute an inquiry led by former SC judge Madan B Lokur to investigate into the Pegasus spyware scandal that had rocked the nation and dominated the monsoon session of Parliament.
The petitioner had argued the rationale behind constituting a “parallel inquiry” when the SC was hearing the matter. According to the petitioner’s lawyer, senior advocate Harish Salve, holding an inquiry into this matter was beyond the competence of the state government since the Information Technology Act came under the “domain of the Union government”, said a LiveLaw report.
Salve also urged the SC to not allow the commission to proceed with its work since they seemed to have issued notices to the public asking for information.
It was when Singhvi was objecting to the submissions made by Salve, the CJI said that when the SC was hearing other matters they expected some restraint. “The present issue is connected to other issues. It will have a bearing on it. In all fairness, we expect you to wait,” he added, LiveLaw quoted the CJI.
Justice Surya Kant also pointed out that this is likely to have a pan-India impact.
Moreover, when Singhvi pressed the court not to pass any order in the petition staying the functioning of the commission, the CJI told the advocate that the court will be hearing the matter next week. “We will pass a comprehensive order,” he said. But warned that if the WB appointed commission starts working then they would have to pass an order.
At which point Singhvi questioned the locus standi of the NGO saying that they had political affiliations and their intentions were unclear. And he urged the SC not to pass any statutory order banning the commission on their request.
“You are forcing us to pass an order. What we want is wait, show restraint,” responded the CJI. Singhvi agreed to convey the SC message to the state government.
The bench said they just wanted an assurance from the state. If a senior counsel has assured before this court, that is enough for us.
In the end, the SC bench passed a simple order of issuing notice in the petition and tagging it along with other Pegasus matters.
‘Could not sit as a silent spectator’: WB government
Meanwhile, the WB government has filed a counter-affidavit that it has acted well within its legal authority to appoint a commission since the subject matter fell within the bounds of List II and List III of the seventh schedule of the Constitution.
The intent was not to have a parallel inquiry nor to overreach the proceedings before the apex court.
However, the state government could not sit as silent spectator particularly when the Union government was not only non-committal and evasive on the subject but had at the very threshold also dismissed the allegations made in The Wire on July 18, 2021 as sensationalism.
‘Wire’, a news portal along with 16 other media organisations had unearthed a list of politicians, journalists, activists and others who were the potential targets for cyber surveillance through the Israeli spy software Pegasus.
On July 26, the West Bengal government issued a notification for setting up the commission comprising retired Supreme Court judge Madan B Lokur and former Chief Justice of the Calcutta High Court Jyotirmoy Bhattacharya, under the Commissions of Inquiry Act, 1952 (60 of 1952) to “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.”
The notification said the commission may submit its report embodying the findings and its recommendations thereon to the government report within six months of the notification.
The terms of reference of the commission included probing into the state and non-state actors who were involved in such reported Interception and “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”, among others, said media reports.
Since there were “aggrieved parties” in the state whose phones had been put under surveillance, the commission would investigate the matter, said Mamata Banerjeee when the commission was instituted.
Several petitions had been filed in the SC asking for a court monitored inquiry by a special investigation team or a judicial probe into this alleged snooping. The SC on August 17 admitting the batch of petitions seeking a probe into the Pegasus controversy had issued a notice to the Central government.