Why Did RSS-Linked GVF Intervene in SC to Stop West Bengal Probe Commission on Pegasus Snooping?

New Delhi/Bengaluru: On December 17, a bench of the Supreme Court, headed by Chief Justice of India N V Ramana, and Justices Surya Kant and Hima Kohli, stayed the proceedings of the two-member Commission of Inquiry headed by retired Supreme Court judge Justice Madan B Lokur, including former Chief Justice of the Calcutta High Court, Justice Jyotirmay Bhattacharya, which was constituted by the West Bengal government to probe allegations that Israeli spyware Pegasus had been used to illegally infiltrate the mobile phones of politicians, journalists and activists.

The logo of Global Village Foundation. Image Source: gvf.co.in

The apex court bench’s decision was based on a petition filed by a Delhi-based “think-tank” named Global Village Foundation Public Charitable Trust. The petitioner was represented by senior advocates Harish Salve (former Solicitor General of India) and Mahesh Jethmalani.

This organisation, set up in January 2015, is a tax-exempt non-government organisation registered under the Indian Trusts Act, and describes itself as a “fledgling research institute working in the field of framing, implementation assistance and assessment of public policies” on its official website. Going by its track-record and the people associated with it, however, the organisation is closely linked to the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP)-led government of Haryana.

Key figures in the foundation with a history of links to the Sangh have been appointed to important positions by Chief Minister Manohar Lal Khattar’s government in Haryana, and in one instance, by the Union government as well. The open association between the Sangh, the organisation and the state government had, at one stage, led to Haryana’s opposition parties (Congress and Indian National Lok Dal) to call for an investigation by the Central Bureau of Investigation(CBI) into various appointments made by the state government.

Global Village Foundation’s links to RSS and BJP

Since it was founded less than three months after the BJP was elected to power in Haryana in October 2014, several key figures associated with Global Village Foundation (GVF) have been accommodated by the BJP in government positions. Several of these persons have links to RSS and its affiliated organisations.

The first two trustees of GVF listed on its website-- Balram Nandwani and Vijay Vats -- are both members of the Swadeshi Jagran Manch (SJM), affiliated to RSS. The SJM’s website lists both as participants in its 14th Rashtriya Sammelan that was conducted in December 2020. Nandwani, a chartered accountant, is the chairperson of the foundation and is reported to be an RSS member.

In 2016, Nandwani was appointed as an independent director in the Uttar Haryana Bijli Vitaran Nigam Limited (UHBVN), the Haryana government’s power distribution company for the northern parts of the state. At that time, former Congress Chief Minister Bhupinder Singh Hooda had termed Nandwani’s appointment as “conflict of interest”, alleging that he had interests in power generation companies that sold power to UHBVN

Former Haryana Power Minister Captain Ajay Yadav had told The Tribune newspaper that Nandwani “can directly influence power purchase and has direct control over all accounts and audits.” He added: “Furthermore, he is not a government employee, so there can be no action against any wrongdoing. Tenders for purchase are known to the directors and this information can be used to benefit power traders and sellers."

On his part, Nandwani had denied the allegations of conflict of interest, telling the same newspaper that “there is no clash of interest,” adding that: “My mandate at UHBVN is to bring accountancy reform as the power utility is reeling under heavy losses.”

In October 2016, a former trustee of GVF, Aniruddha Rajput, who was also listed as a “mentor” of the organisation and a member of its governing council, was nominated India’s representative to the United Nations’ International Law Commission, a world legal body that codifies public law. The choice of Rajput, who was then 33 and completing a doctoral degree, raised questions because prior to him, India had always chosen a senior and seasoned jurist for the position in what is one of the United Nations’ top legal bodies.

Rajput continued to be listed as a trustee in GVF until at least March 2019. He is a lawyer with a history of links to the Sangh, having served as a counsel and director of the RSS think-tank, Jammu and Kashmir Study Centre. He was also appointed by the Haryana government as a member of its Fifth Finance Commission in May 2016. The GVF’s director, public policy, Mukul Asher (who is also on the foundation’s advisory body) was appointed the Chairman of this finance commission.

Former Chief Managing Director of National Aluminium Company (NALCO), Bajrang Lal Bagra, a member of GVF’s advisory body and governing council, is also on the advisory board of the Ekal Abhiyan, an RSS-linked organisation that runs informal schools in tribal areas. He is also joint general secretary of the Vishwa Hindu Parishad.

Meanwhile, B K Kuthalia, GVF’s advisor on education reforms and the third member of its advisory body along with Asher and Bagra, is an RSS ideologue, who is known to be particularly close to Dinanath Batra, one of the RSS’s most prominent voices on education-related issues. In March 2018, Kuthalia was appointed to head the newly created Haryana State Higher Education Council.

Sumit Kumar, a co-founder and governing council member of GVF is a special officer to Haryana Chief Minister Khattar.

Raj Nehru, who heads the skill development and education team at GVF, was appointed founding Vice Chancellor of Shri Vishwakarma Skill University by the Haryana government when it was established in 2016. He also serves as a director on the board of the Haryana State Electronics Development Corporation Limited. Nehru was also appointed a member of the panel for the formation of an implementation plan for the National Education Policy 2020 by the University Grants Commission.

Khattar, as Chief Minister, has himself attended GVF events on several occasions. He attended its Foundation Day event in May 2016 and was the chief guest at the “GST Summit” – Haryana, a conference on the Goods and Services Tax organised by GVF in September 2016.

In December 2015, GVF signed a memorandum of understanding (MoU) with NASSCOM (or the National Association of Software and Service Companies, a non-governmental trade association and advocacy group on the information technology industry) and the Haryana government’s Technical Education Department as the nodal agency with the aim of providing jobs. In July 2016, in Chief Minister Khattar’s presence, GVF signed an MoU with Maharshi Dayanand University, Rohtak, for collaborative studies and research on social and economic public policies.

Nandwani explained to The Tribune the role of GVF in the Haryana government. He said: “The NGO is a think-tank to research … public policy. GVF has helped the government on GST and other issues; we are a group of professionals like economists, lawyers, chartered accountants. We are working with the government on various issues. We are people with a social background and all GVF Governing Council members work on a voluntary basis.”

Chief Minister Khattar’s media adviser Amit Arya told the same publication: “GVF comprises a group of selfless professionals who are helping various state governments in formulating policy. They have also helped the Central government on certain matters. Similarly, they are working with the Haryana Government in their respective areas of specialisation."

The Congress’s Ran Singh Mann has alleged that an unnamed senior RSS leader backs GVF and that former GVF member Sunil Sharma – who was appointed the “nodal authority” to manage mining operations of the Haryana State Industry and Infrastructure Development Corporation (HSIIDC), the “chief coordinator” in the Industries Department of the state government and also the head, estate division of HSIIDC – is the “link” between Chief Minister Khattar and RSS.

Haryana Chief Minister Manohar Khattar (centre) at GVF’s Foundation Day event in May 2016. Image source: gvf.co.in

Haryana Chief Minister Manohar Khattar (right) with GVF Trustee and Chairman Balram Nandwani at the GVF Foundation Day event in May 2016. Image source: gvf.co.in

GVF Trustee and Chairman Balram Nandwani (left) with Maharshi Dayanand University registrar Jitender Bhardwaj (right) signing an MoU in the presence of Haryana Chief Minister Manohar Khattar (centre) in July 2016. Image source: gvf.co.in

GVF’s intervention in the Pegasus case

So how did this NGO with close links to RSS and the Haryana government come to intervene in the Pegasus case before the Supreme Court seeking to stop the working of the West Bengal government-constituted inquiry commission, and what effect did its intervention have?

Let us recall the timeline of events relating to the Pegasus surveillance scandal.

On July 18, an international consortium of media organisations, including The Wire in India, together released the findings of the “Pegasus Project.” The project found that the phone numbers of some 300 Indians were in a leaked list of phone numbers that had possibly been targeted for surveillance with the Israeli NSO Group’s Pegasus software. Included in the list were journalists, activists, politicians and public servants. Forensic analyses confirmed that a few phones of persons whose numbers were on the list had indeed been infiltrated using the software, even as the NSO Group insisted it sold only to “vetted governments.”

On July 26, while the Union government dilly-dallied on the Pegasus issue neither confirming nor denying whether any government agency had purchased the Israeli spyware, the West Bengal government instituted a two-member commission of inquiry headed by retired Supreme Court judge Justice Madan B Lokur to investigate the claims.

West Bengal Chief Minister Mamata Banerjee’s nephew, Abhishek Banerjee, who is a two-time MP and her party Trinamool Congress’ National General Secretary, and her advisor and poll strategist Prashant Kishor’s phone numbers had appeared in the leaked list of phones possibly targeted for surveillance using Pegasus, and forensic analysis done by Amnesty International and Citizen Lab in Toronto, Canada, had confirmed that Kishor’s phone had been compromised.

Meanwhile, a number of petitions were filed in the Supreme Court, including by several persons whose phones had been confirmed by forensic analysis to have been surveilled using Pegasus, seeking a court-monitored investigation.

It was at this juncture that GVF filed an appeal before the Supreme Court challenging the constitution of the commission of inquiry by the West Bengal government.

Proceedings in the court

Initially the Supreme Court bench did not seem inclined to entertain GVF’s plea. In oral hearings on August 18, advocate Saurabh Mishra, appearing for GVF, argued that the West Bengal government did not have the jurisdiction to establish a commission to enquire into this matter. GVF argued that only the Union of India has the power to set up an inquiry commission on the Pegasus case.

Solicitor General Tushar Mehta, on behalf of the Union government, supported GVF’s case and stated that the West Bengal government’s notification was unconstitutional.

Mishra noted that the Lokur-Bhattacharya commission was functioning on a daily basis, and issuing summons and notices. Since the Supreme Court was already hearing petitions seeking a national-level probe, he argued that the operations of the inquiry commission should be halted until the SC decides on the pending petitions.

On that day, the bench rejected advocate Mishra’s plea for an interim stay order on the commission’s proceedings saying that there is “some inconsistency” in GVF’s affidavit.

At the next oral hearing, on August 25, GVF was represented by renowned senior advocate and former Solicitor General of India Harish Salve. Salve argued that the apex court’s decision in the other related petitions filed by the victims of the Pegasus hack seeking a court-monitored investigation would have an impact on the proceedings of the West Bengal commission. Accordingly, he sought a stay on the proceedings of the commission until the other petitions were dealt with.

Appearing for the West Bengal government, senior advocate (and Congress leader) Abhishek Manu Singhvi assured the court that the West Bengal government would convey to the inquiry commission that it should not take action until the Supreme Court has adequately heard the Pegasus petitions. Salve accepted this assurance on behalf of GVF and no stay order was issued.

At this juncture, however, the West Bengal government also raised questions about the bona fides and standing of GVF to intervene in the case. In an affidavit, the West Bengal government contended that GVF had filed this petition to obstruct any independent inquiry into the Pegasus case. It said that Balram Nandwani, the trustee and chairman of GVF has a close association with RSS and its affiliate Swadeshi Jagran Manch. In court, Singhvi stated that the petitioner was an NGO with clear political affiliations and that the persons associated with GVF wanted a statement from the court ordering a stay so that it could “make a splash.”

Subsequently, the SC bench issued its interim ruling on the entire clutch of Pegasus cases on October 27. It set up a committee chaired by retired Supreme Court Judge, Justice R V Raveendran, to probe the allegations of surveillance using Pegasus software. Along with two officials to assist the retired judge, the committee comprised three independent technical experts. In this interim ruling that set up the committee, the court made no mention of the West Bengal commission of inquiry beyond its earlier orders.

Following this ruling, the West Bengal Commission of Inquiry resumed its proceedings.

On December 16, Salve “mentioned” the GVF plea before the SC bench. The matter was taken up for hearing the very next day, December 17. At this hearing, Salve told the court that despite assurance by the West Bengal government to the court, the commission was continuing with its proceedings. Singhvi, appearing for the West Bengal government, told the court that that commission was informed of the restriction but the state of West Bengal did not control its actions. Singhvi also noted that the inquiry commission had commenced its investigation only after the SC bench had pronounced its interim order.

As the commission is an independent entity, and cannot be represented by the State of West Bengal, Salve sought that the commission be impleaded as a respondent to GVF’s plea. The court accepted this request and issued a notice to the commission, staying its proceedings.

Political row in West Bengal

At the time GVF’s petition was being heard by the Supreme Court, a political row kicked off. Three days after the stay order on the commission’s proceedings, on December 20, the Governor of West Bengal Jagdeep Dhankar sought the record and proceedings of the Chief Minister that led to the constitution of the commission of inquiry. Dhankar, who was appointed to the position by the Narendra Modi government in July 2019, and has been a frequent and outspoken critic of the Trinamool Congress government in the state ever since, invoked Article 167 of the Constitution that defines the Chief Minister’s duties toward the Governor of the state in seeking this record.

In his letter to the Chief Minister, Dhankar states that the Chief Secretary of the state government had failed to provide information and records that led to the formation of the commission of inquiry, and that the notification instituting the commission had been “premised on the opinion of the Governor.” Highly placed sources in the West Bengal government, seeking anonymity, confirmed to the writers that requests for records from the office of the Governor had been received by the Chief Secretary of West Bengal and that the Chief Secretary had declined to provide any information, following which GVF’s plea was mentioned before the Supreme Court on December 16.

Impact on the Pegasus probe

Prior to this stay order, the West Bengal Commission of Inquiry had conducted several steps in its process of inquiring into the allegations.

It had issued a public notice seeking information from those affected on August 3, and had also issued private notices to 21 individuals, according to a document uploaded to the commission’s website. Of these, five individuals had responded to the notices, and subsequent second notices had been issued to them. In addition, 11 persons had provided information voluntarily to the commission, without being served a notice.

The first set of notices was sent by the commission between August and November 2021 to the following persons/organisations:

1. West Bengal Chief Secretary H K Dwivedi.

2. The Citizen Lab, an interdisciplinary laboratory based at the Munk School of Global Affairs at the University of Toronto, Canada, and Amnesty International. Amnesty had provided technical assistance to the Pegasus Project. Citizen Lab had conducted a peer review of Amnesty’s investigation.

3. Siddharth Varadarajan and M K Venu – founding editors of The Wire, which was a part of the international consortium of media organisations that investigated and published the leaked list of those whose phones were “compromised” by the use of the Pegasus malware. Venu and Varadarajan’s phones were also confirmed by forensic analysis to have been “compromised.”

4. Paranjoy Guha Thakurta – Journalist

5. S N M Abdi – Journalist

6. Prashant Kishor – Political strategist and consultant

7. Abhishek Banerjee – Trinamool Congress National General Secretary, MP and nephew of Mamata Banerjee

8. Tony Jesudasan (and his wife) – Reliance Anil Dhirubhai Ambani Group’s head of corporate communications

9. Venkat Rao Posina – India representative of France’s Dassault Aviation, manufacturer of the Rafale fighter aircraft

10. Harmanjit Nagi – Head of the French state run power utility firm Électricité de France SA (EDF)

11. Pratyush Kumar – Head of Boeing India

12. Anjani Kumar – Labour rights activist

13. Shiv Gopal Mishra – Union leader of employees of the Indian Railways

14. Rajeshwar Singh and Abha Singh – Senior officer of the Enforcement Directorate and his sister

15. Hany Babu MT – Associate Professor at Delhi University and a social activist who was arrested in the Elgar Parishad case

16. Rahul Gandhi – Former president of the Indian National Congress

17. Rakesh Asthana – Former senior official of the Central Bureau of Investigation and current Delhi Police Commissioner

18. Rakesh Tiwary – President of the Bihar Cricket Association

With the stay order in place, the West Bengal Commission of Inquiry now has to appear before the Supreme Court in the GVF plea to justify continuing its probe. The date assigned by the Supreme Court’s automatic listing system for the next hearing in the case is February 4, 2022.

Among those named, Venu, Varadarajan, the Citizen Lab, the West Bengal government’s Chief Secretary, Guha Thakurta and Abdi had responded to the notice served by the Lokur-Bhattacharya Commission of Inquiry and were subsequently served second notices.

Venu and Varadarajan said they sent a written statement in response to the Lokur-Bhattacharya Commission of Inquiry. Following this, they said, the Commission had scheduled a video conference with them, but this could not take place before the Supreme Court stayed the Commission’s proceedings.

Abdi said that he had been asked to appear before the Lokur-Bhattacharya Commission to record his statement, but the Supreme Court’s stay order was passed on the same day that he was scheduled to appear, and therefore his hearing did not take place as the Commission wound up its operations in light of the stay order.

Guha Thakurta said that he had appeared before the Lokur-Bhattacharya Commission in person, that the commission had recorded his statement and that he handed over his mobile phone to the commission to download the data in it for forensic analysis.

Jenny Rowena, partner of Hany Babu, said that she had not received any notice from the Lokur-Bhattacharya Commission.

At present the Supreme Court’s technical committee is the only body examining the allegations raised by the petitioners who have alleged that their phones were infiltrated by Pegasus. The Supreme Court’s interim order has given no deadline for this committee to conclude its probe, so an indeterminate length of time will pass before the committee submits its report to the court and there is any progress in the case.

In early-January, the Supreme Court appointed committee issued a public notice seeking those who believe that their phones were infiltrated using Pegasus to come forward to make statements to the committee and submit their phones for technical analysis.

Varadarajan said that the Justice Raveendran Committee appointed by the Supreme Court reached out to him and sought his response. The Committee also sought to copy the data on his phone for a forensic examination and his responses to some questions. He stated that he has sought certain clarifications from the Committee, and will appear before the Committee to provide his statement soon.

Guha Thakurta and Abdi both said that after they wrote to the Justice Raveendran Committee in response to its public notice, it has sought their mobile phone devices for examination and has asked them to appear before the committee to record their statements.

Rowena said that following the issuance of a public notice by the Justice Raveendran Committee, she had written to the Committee’s email address on behalf of her husband Hany Babu, and sought the Committee’s postal address so that he might be able to write to the Commission from Mumbai’s Taloja Jail where he has been held in judicial custody for 18 months as an under-trial in the Elgar Parishad case since his arrest by the National Investigation Agency (NIA) in July 2020. She has not received any response from the committee yet, she said. The mobile phone device of Hany Babu’s that could have been infiltrated by Pegasus, is still in the possession of NIA which has seized it, Rowena added.

The writers also reached out to representatives of Abhishek Banerjee and Rahul Gandhi, but did not receive their responses till the time of publication.

Differences between the West Bengal Commission of Inquiry and the SC-appointed committee

Significantly, there are differences in the powers, constitution and terms of reference between the Commission of Enquiry constituted by the West Bengal government and the committee appointed by the Supreme Court.

Constituted under the Commissions of Inquiry Act of 1952, the West Bengal Commission of Enquiry’s report and findings are not binding on the state government or the Supreme Court. The same is true of the SC-appointed committee as well. Both can only produce reports that are advisory in effect.

However, the terms of the notification constituting the West Bengal Commission of Inquiry allows for the commission to legally question any person and require the furnishing of information, and carry out searches or raids for documents in any location, as may be required for the purpose of its investigation. Additionally, the terms also allow the commission to deputise to itself, any officer of an investigative agency of the state or central government as it requires for the purpose of its investigation, with the concurrence of the relevant government.

The Supreme Court committee, on the other side, does not explicitly have any of these powers enumerated in the Supreme Court’s interim order. The order does direct the Central government and all state governments to “extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required by the Committee” but this is a lower set of powers afforded to the committee than was available to the Commission.

The terms of reference setting out the scope of the respective probes also differ in scope, focus, and priorities.

The Supreme Court’s committee is tasked to find out whether the Pegasus software was used to spy on any Indian citizen, details about the victims, what steps were taken after previous reports of hacking using Pegasus came out, whether the Pegasus software was acquired by any Indian government agency, what legal framework allowed for its use, and whether, if it was used to spy on any Indian citizens, this use was authorised.

On the other side, the West Bengal Commission’s terms are more specific. While it also seeks the all of the same subjects to be investigated (barring the question of steps taken by the central government after previous reports of such surveillance), it adds the question of determining the “state and non-state actors who were involved in such reported interception,” “events leading to the occurrence of the incidents of interception...and the information that has been collected, altered, stored or used,” “the circumstances, including provocations, instigations from any persons/group of persons, if any, leading to the reported interception,” “the role of other authorities and/or State and/or non-state actors.”

The Supreme Court’s committee has an additional burden and focus that the Commission does not. It is tasked by the SC to issue recommendations on “enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy,” “enhancing and improving the cyber security of the nation and its assets,” “prevention of invasion of citizens’ right to privacy,” “establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance,” and “setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyber attacks and to investigate...cyber attacks.”

Broadly, the Commissions’ terms of reference can be summarised as demanding a detailed and thorough investigation of the alleged surveillance using Pegasus, while the committee is tasked additionally with issuing recommendations on law, policy and governance in addition to investigating the alleged surveillance.

Finally, the Commission of Inquiry was stipulated a deadline of six months from its constitution to submit its report, while the SC committee specified no deadline.

Significantly, there is no inherent legal bar on both probes being conducted simultaneously, and could result in potentially more significant findings being unearthed than by one probe alone.

Defects in SC’s stay order?

In an article for the Indian Constitutional Law and Philosophy blog, Krishnesh Bapat, a member of the team of lawyers representing the petitioners who approached the Supreme Court seeking relief against the use of Pegasus spyware on them, argues that the apex court order that issued the stay on the West Bengal Commission of Inquiry suffers from various defects.

The first defect, Bapat argued, is that the court’s order does not make clear why it has stayed the commission’s proceedings. “[The court] has prohibited the Commission from continuing with its proceedings without recording reasons, without hearing the counsel for the Commission” he writes.

“The Court could have imposed a stay only if it found the notification constituting the Commission to be ex-facie unconstitutional or that the balance of convenience entirely lied in favour of the petitioners or that it was unjust/unfair for the proceedings of the Commission to continue” he added, but the court did not record any such reasons.

The second defect, Bapat argued, is that the court did not address whether GVF had the locus standi, or legal standing, to make its plea. “On the face of it,” Bapat wrote, “… the NGO does not seem to have any connection with the disclosures made by the Pegasus Project. The NGO also was not summoned as a deponent by the Commission, and to the best of the knowledge of the author, it did not stand to gain/lose by the continuation of the proceedings. Thus, propriety required that the Court at the least detailed why the submissions of the NGO were accepted, especially since the State of West Bengal had questioned their bona fides.”

Response from Global Village Foundation

The authors wrote to GVF, and to its chairperson Balram Nandwani, seeking their comments. In particular, the authors asked why the Foundation had sought to intervene in the Pegasus case, and on what basis it argued that it had the requisite standing to do so.

No response was received from GVF or Nandwani till the time of publication. This article will be updated with any response that is received.

The authors are independent journalists.

This article was amended on February 1, 2022 to reflect that Justice Jyotirmay Bhattacharya is the former Chief Justice of the Calcutta High Court, and that the Chief Secretary to the West Bengal government is H K Dwivedi.