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The Supreme Court Bench of Chief Justice of India NV Ramana, Justice Surya Kant and Aniruddha Bose has issued a notice to the Government of India after a series of hearings on the Pegasus snooping matter. Several pleas have been filed in the top court against alleged illegal hacking and surveillance of electronic devices of citizens including journalists, human rights activists, academicians, a former minister and even a judge!

The Union government had filed a short affidavit before the court denying the allegations of all the petitioners, and had also stated their decision to form a committee to examine the issue to dispel “any wrong narrative by vested interests”. The petitioners objected to the affidavit as it did not outrightly deny the charges of the use of Pegasus to spy on citizens.

Senior Advocate Kapil Sibal, representing one group of the petitioners (journalists, N Ram and Sashi Kumar) had argued on August 16, “We don’t want the government which might have used Pegasus to set up a committee. Where is the question of a committee coming? They should be given enough time to submit an affidavit on facts. Have they (Centre) sought an FIR? Have they complained to the Israel government? What has the Centre done? This is serious.”

He further took objection to the “limited affidavit” filed by the Centre. He said, “The Government of India must state on oath if they or their agencies have ever used Pegasus. This fact has to be either denied or accepted. That is not done in the affidavit filed by the Centre. Government says there is no issue but the Israel government is investigating the allegations. This is wholly unacceptable.”

Sibal also pointed out that the former Information Technology Minister had told the Parliament in 2019 that phones of nearly 121 Indians were targeted by Pegasus, and highlighted that the Centre has not done anything since. Senior Advocate Rakesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta, who has been directly aggrieved as his phone has been reportedly hacked by Pegasus, submitted that even the Minister’s statement before the Parliament does not make a categorical denial of the use of this Israeli spyware. “There is no denial that they are not using it. Privacy is a fundamental right,” he said. On the issue of the technical committee being set up, he argued that a government-controlled committee would not be able to gain the confidence of the courts and the public.

Senior Advocate Meenakshi Arora, appearing for Rajya Sabha member John Brittas of CPI(M), had contended yesterday that the Government’s affidavit was “delightfully non-committal” on the question of using Pegasus. She asked, “If the government itself has not taken any onus, what will this government set up committee do?”

Today, on August 17, the Solicitor General of India, Tushar Mehta argued that their affidavit is sufficient and would not like to file another detailed one. He said that they will set up a technical committee with “neutral people” and that the report of the committee will be submitted to the Supreme Court. He cited national security issues to evade another affidavit.

He contended, “The Affidavit is sufficient. The government of India is before the highest constitutional court. There is a statutory mechanism which permits you to have interceptions as per statutory procedure. Now, all petitions pray that the court should inquire into this. We know that IT encryption rules are there for state security and national security purposes, and this software can be used. These software’s are purchased by every country, they (petitioners) want it to be divulged if the software has not been used. If we divulge this, then the terrorists can take preventive steps. These are issues of national security. We are not hiding anything from this court. Let the committee examine the allegations and let it be monitored by the court, but as a constitutional court, it cannot expect a central government to reveal issues of national security in an affidavit which is in public domain.”

The Chief Justice clarified that they are not compelling the government to reveal information about national security. Justice Surya Kant said, “None of us would like to compromise with the security of the nation or the defence of the nation, we are not going to ask you to disclose anything. But here, we have some persons of eminence who are alleging snooping and hacking of phones. Now this can also be done but only with permission of competent authority. What is the problem if the authority files an affidavit before us?”

The Bench further reiterated that it does not want the government to disclose any information related to national security. Senior Counsel Kapil Sibal intervened at this point, and said that the petitioners too do not want information pertaining to the security of the country. “He (Solicitor General representing the Centre) must reply if Pegasus as a technology was used,” he concluded.  

The court then issued a notice to the Government of India and directed the matter to be listed after 10 days. “This is at the stage of admission. I will issue a notice before admission. We will see if we have to constitute a committee, let us see how the matter goes,” CJI Ramana reportedly said.

On one hand where the Centre has not denied the use of Pegasus in its affidavit, the Union Defence Ministry has categorically denied having any transaction with Pegasus maker NSO Group Technologies in the Parliament. The written response provided on August 9, by Ajay Bhatt, Minister of State in the Ministry of Defence, said, “Ministry of Defence has not had any transaction with NSO Group Technologies.” 

The order dated August 16 may be read here: 

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Defence Ministry has had no transaction with Pegasus developer NSO Group: Centre in RS