NEW DELHI, Aug 18: The two-member judicial inquiry commission constituted by the West Bengal chief minister Mamata Banerjee to probe into the alleged snooping of some mobile phone users in the state through the Israeli spyware Pegasus has been questioned in the Supreme Court.
The apex court accordingly on Wednesday issued notices to the centre and the West Bengal governments over setting up of the inquiry commission in the state, particularly when the Supreme Court was seized with the matter with a bunch of petitions pending before it for its considerations.
A Bench headed by Chief Justice of India NV Ramana sought responses from the Centre and state, and listed the matter for August 25. It will be heard alongside other petitions on the Pegasus row.
On July 26, Banerjee had announced constitution of a commission of inquiry to go into the complaints of phone tapping by some users in the state using the Pegasus spyware developed by the Israeli cyber-intelligence company NSO Group. The committee included retired Supreme Court judge Justice Madan B Lokur, and the retired former Chief Justice of Calcutta High Court Justice (retd) Jyotirmay Bhattacharya.
Advocate Saurabh Mishra, appearing for the petitioner challenging the West Bengal inquiry commission, contended that they had challenged the commission on grounds of jurisdiction. He stated that the proceedings should not go on as the issue is being examined at a pan-India level.
Even after the Solicitor General Tushar Mehta called the West Bengal committee “unconstitutional,” the court refused to stay its proceedings with Justice Surya Kant stating that the committee was only taking “preliminary steps.”
Earlier on Tuesday, the apex court had said it would discuss and decide the future course of action, after the central government insisted that the matter had national security implications due to which it did not want to put the details in a public affidavit. The Centre has said it would reveal all aspects to a committee of independent experts, who can then submit its report to the Court.
An The apex court, however, was not satisfied that none of the questions raised in the bunch of petitions challenging the alleged misuse of the Pegasus software could not be answered nor was it happy that the affidavit on behalf of the centre was filed by an additional secretary ministry of information technology and the home ministry which deal with the legal use of phone tapping on security issues.
The August 5 reply by the government in the Parliament makes it clear that the Home Secretary is the competent authority to deal with legal interceptions. However, the central government affidavit in the apex court denying “all or any” allegations in the Pegasus row was filed by the Information Technology Ministry.
In his August 5 reply to Rajya Sabha Member John Brittas’s question about “telephone interceptions,” Minister of State for Communications Devusinh Chauhan specified that the “Union Home Secretary is the competent authority in case of Central government and Secretary in charge of Home Department in case of States/Union Territories”.
The Minister said the Home Secretary’s power to approve legal interceptions is mandated under Section 5(2) of the Indian Telegraph Act,1885 read with Rule 419A of Indian Telegraph (1st Amendment of 2014) Rules, 2014 and Section 69 of the Information Technology Act, 2000 read with the Information Technology) Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
The Supreme Court has repeatedly urged the government, on two consecutive days of hearing on August 16 and August 17, to have the “competent authority”, that is the Union Home Secretary, address the Pegasus issue in a detailed affidavit.
But the government has so far objected to the suggestion. It has refused to be part of any “public debate” on the Pegasus issue or any interception, whatsoever, by having the Home Secretary file a “detailed affidavit”.
Solicitor General Tushar Mehta, for the Centre, has maintained that a public discussion in court on the software used for interception would alert terrorists and compromise national security.
The court has not bought the government’s argument. Though it assured the Centre that nothing would be done to compromise national security, the Bench headed by Chief Justice Ramana said it still has to address the concerns of citizens, including persons of eminence, who have complained to the court about the hacking of their mobile phones.
“The question here is that there are some persons of eminence who have come here, saying there has been interception of their phones… That can be done, but with the permission of the competent authority… What is the problem if that competent authority filed an affidavit before us?” Justice Surya Kant, on the Bench had asked the government on August 17.
“We are issuing simple notice… Let the competent authority say to what extent what information can be disclosed,” Justice Kant had said.
Senior advocate Kapil Sibal who had appeared on behalf of the two veteran journalist petitioners N Ram and Sashi Kumar had clarified that the petitioners do not want the government to reveal anything that affects the defence of the nation.
“We want a straight answer. Did the government or any of its agencies use Pegasus? That question does not deal with national security. Again, if the government has used Pegasus, did they use it through the Home Secretary. That again does not concern national security… So, let them file an affidavit,” Sibal had submitted.
Sibal also wondered aloud in court in why an Additional Secretary from the Information Technology Ministry has filed the government’s affidavit in the Pegasus issue instead of the Home Secretary. He had also contended that the affidavit did not even say whether the “facts and contentions” in the petitions were right or wrong.
However, minister’s reply on August 5 by Mr. Chauhan had quoted the Ministry of Home Affairs (MHA) to inform that “records pertaining to lawful interception are destroyed regularly. Such records are not being maintained by MHA,” the Minister had informed.
The petitioners have also raised the question that if the records are “regularly destroyed” by the union home ministry, what purpose would the constitution of the “committee of experts” as offered by the centre would serve.