The Supreme Court continued to hear the various petitions filed against the alleged use of Pegasus to spy on citizens of the country. The three-judge Bench of CJI NV Ramana, Justices Surya Kant and Hima Kohli has reserved its order in the matter, where the central government has refused to file a detailed affidavit disclosing information. The Bench has given the liberty to the government to approach the Court in the next two to three days, if they change their mind.
Although the Solicitor General of India, Tushar Mehta, had asked for more time to file an additional affidavit in the previous hearing, today, on September 13, he refused to disclose more information about the use of Pegasus and reiterated that the government would like to set up a committee to look into the grievances of the petitioners.
He said, “The position is like this…petitions before your lordships are seeking inquiries into unauthorised surveillance. I have filed an affidavit stating that in view of prevailing statutes, we are in compliance. I have stated in my affidavit that we would constitute a committee of domain experts…” He argued that the government cannot disclose the use of Pegasus on the affidavit, because of national security reasons.
He said, “The domain experts will look into it and file the report before your lordships….section 69 of the Information Technology Act permits interception but there has been no unauthorised interception. The Centre has informed the Parliament. Nonetheless, the issue is important. So, we have expressed our willingness to constitute a committee…Whether the government used A software or B software for authorised interception can’t be the subject matter of a court debate.”
SG Mehta pressed for the formation of the committee and said that the report will be submitted before the Supreme Court. “Everything will be fair… I [the government] am not averse to the fact that petitioners are alleging invasion of privacy. I will take it seriously. That is why I suggested the formation of a committee. Revealing whether Pegasus was used or not, would not be in national interest. Allow the government to constitute the committee, independent of the government. We would not like to place it on affidavit in interest of nation and security of the nation,” he submitted.
At this point, Justice Surya Kant intervened and clarified that the Bench does not intend to get into sensitive matters of national security of the nation. “We have clarified that when it comes to national security, nobody is interested in that. The only limited affidavit which we were expecting you to file was…there are citizens before us alleging infringement of rights. If you could just clarify that….”
The CJI reiterated, “We are going back again and again; we are not interested to know what you are doing to protect the interest and defense of the country. We are only concerned in the face of allegations, some software was used to target some citizens, to know if the government has used such a method. This needs examination…If you would have filed an affidavit, we would have known where we stand as of today.”
Senior counsel Kapil Sibal, appearing for one group of the petitioners (journalists, N Ram and Sashi Kumar) referred to the case Ram Jethmalani vs Union of India, 2008 11 SCC 1, to argue that the State may not act in a matter which prevents this court from rendering complete justice by withholding information. He said, “All we want to know is if the State has used Pegasus. But my learned friend [Tushar Mehta] is saying that it will be detrimental to national interest. I am sorry, to not say that will be detrimental to justice. This spyware is per se illegal. It cannot be used. Ordinary citizens were targeted. This is a serious issue. State cannot say that they cannot tell the court.”
Sibal then referred to the Hawala scam case, to argue that a panel of retired judges were constituted to probe the allegations and that the same should be adopted in this present case, instead of the court directing the government to form the committee. He said, “Why should the government be allowed to form a committee on its own? It should be completely away from their control.”
Shyam Divan, senior advocate appearing for petitioner Jagdeep S Chhokar, urged the court to direct the Cabinet Secretary to file a detailed affidavit on the matter. He said, “We have indicated cases where the court has directed the Cabinet Secretary to file an affidavit in the past. There could be an invasion of privacy by an agent of the government or outside the government. Either way it’s the duty of the state to protect the citizens from such an invasion. The Cabinet Secretary is in-charge of all departments. He can look into it.”
He further submitted that Pegasus is not just a surveillance mechanism but a malware that can implant false data and documents in the device. He said, “This is beyond the telegraph rules, and the IT act…the government is to be vitally concerned about this. If Pegasus is being deployed without knowledge, I respectfully urge that the Cabinet Secretary file an affidavit. My client is a retired IIM Professor and if people like him are targeted, then it is a direct assault on democracy.”
Senior counsel Rakesh Dwivedi, appearing for petitioners SNM Abdi and Prem Shankar Jha, argued that allowing the Government to constitute a committee and asking the petitioners to submit their phones will be a secretive exercise. He said, “It will not be a credible exercise in which people of the country will have faith.”
Senior counsel Dinesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta, whose name was allegedly in the potential list of Pegasus targets, said that the affidavit of the central government is contradictory. He said, “In one place they [central government] say that the allegations are baseless but in other places they say allegations are serious and so they are constituting a committee…I appear for a journalist whose phone was snooped and it was accepted too, this was not denied.”
Senior Advocate Meenakshi Arora, appearing for Rajya Sabha member John Brittas of CPI(M), suggested that a Special Investigation Team should be set up, under a retired judge. Senior Advocate Colin Gonsalves, representing Software Freedom Law Centre argued that the government has been engaging in widespread surveillance and if this were true, the government committee would be of no help.
After the arguments of the petitioners, the Solicitor General Tushar Mehta vehemently argued against filing of another affidavit and said that interception in the country is not an illegal activity. In his concluding submissions, he said, “There is a statutory regime in place, interception per se is not illegal. Mr. Shyam Divan states that Pegasus is a dangerous technology, it is a dangerous technology, it can be used and abused. But that will leave us nowhere.”
He added, “Let there be a committee of experts to find out whether the petitioners are right or wrong. It is the assurance of me that the domain experts will not be directly or indirectly related to the government and the report will be submitted to your hon’ble court. That is how a façade is created that the government is hiding something. We have nothing to hide. We can’t place this in an affidavit in the public domain. Let domain experts look into it. The insistence that it should come into public domain by way of an affidavit will alert potential targets like terror groups, etc.”
CJI Ramana then said, “Beating around the bush is not the issue, Mr. Mehta.” He then ended the hearing by saying, “if the committee examines the issues, and submits the report to us, it will still be in the public domain….let us see what order we will pass. We are reserving and will pass an interim order.”
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