The Supreme Court today took note of the fact that the affidavit filed by the Central government in response to pleas calling for investigation into the Pegasus scandal did not reveal whether or not it has used the spyware.
The Bench of Chief Justice of India NV Ramana and Justices Surya Kant and Aniruddha Bose also observed that the Centre was reluctant to take a stand before the top court.
“Whatever you want to say why don’t you file an affidavit? We will also get a clear picture,” the Court said.
Solicitor General (SG) Tushar Mehta, representing the Central government responded by stating,
“I ask myself if a one page affidavit is filed saying Pegasus was not used then will they withdraw the pleas? The answer is no.”
“We see you don’t want to take a stand,” the Court responded.
“If it is for fact finding, then I am for it. But if it is for sensationalising which is alien to Article 32 then I cannot help it. It looks like petitioners want to go somewhere else other than what courts wants to see,” the SG replied.
The Court was hearing a batch of petitions seeking various prayers including a Special Investigation Team (SIT) probe, a judicial inquiry and directions to the government to reveal details about whether it had used the Pegasus software to spy on citizens.
SG Mehta referred to an affidavit filed through the Union Ministry of Electronics and Information Technology in which all allegations levelled at the government were denied. The Court also noted that a Committee of Experts will be formed by the government to look into the issue.
Mehta said that the matter is one which has national security implications.
“This matter if gone into will have national security implications. This matter cannot be handled like furnish an affidavit etc. This is an issue in which facts placed etc will have national security concerns. There is a system in place,” he said.
“We have denied all allegations…Minister has clarified that a web portal has published a sensational story before Parliament session begins. There is nothing to hide or that needs examination,” Mehta added.
At this point, Justice Bose said,
“I had once interacted with two of the petitioners – Paranjoy Guha Thakurta and one other. Do you all have issues if I hear this matter?”
None of the counsel objected to the same.
Senior Advocate Kapil Sibal then proceeded to make submissions on behalf of one of the petitioners. He said,
“This affidavit does not answer issues raised by us…then come to para 3 of the affidavit which says petitions are based on surmises and conjectures. Now if they have not answered in fact then how can they say this? Let them say Centre has nothing to do with Pegasus.”
Sibal further stated that the petitioners did not want the government to constitute the Committee of Experts to look into the scandal.
“We don’t want the government, which might have used Pegasus, to set up a committee.”
He went on to argue,
“Centre says some spyware had infected WhatsApp…this means they had acknowledged it. It was also acknowledged that 119 users from India were infected with the spyware. Have they got in touch with the Israeli government? That’s why they don’t respond on facts. No FIR filed…”
France has started a national level probe through court procedures, Israel is also conducting enquiry. Indian government says all is fine.
Senior Advocate Kapil Sibal
Appearing for another petitioner, Senior Advocate Rakesh Dwivedi said,
“There is nothing in the Minister’s statement that government is NOT using Pegasus. There’s nothing that says they haven’t used the facility and agencies are not using it…”
He went on to state that use of Pegasus or any other surveillance software has to be authorised by a law made by Parliament.
“Here in this affidavit nothing of that is stated. Privacy is a fundamental right and if it is being breached or not has to be seen if it is through a law of Parliament. There is no statement that it is used or not used against me. Let them get time and reply.”
On the formation of a Committee as envisaged by the government, Dwivedi concluded,
“They have not even stated who will be the members of this committee. It has to be a neutral independent committee. It should be monitored by this Court.”
Appearing for Jagdeep Chhokar, Senior Advocate Shyam Divan said,
“This is an Article 32 petition and this is a matter of tremendous importance in which this skimpy two-page affidavit is filed.”
“We are dealing with a sensitive matter but an attempt is being made to make this sensational!” SG Mehta replied.
He went on to contend,
“Minister concerned with this department has given details as to how this Pegasus issue has been raging fire over the past few years. The placing of facts will involve national security issues.”
At this juncture, the Court suggested,
“Whatever you want to say why don’t you file an affidavit? We will also get a clear picture.”
On the government’s move to set up the expert committee, the Court said,
“How will the technical committee check what authorizations have been given?…There are two issues, experts can check what particular software was used. The issue of permission, sanction, procurement , non procurement etc who will examine that?”
“Your lordships can invoke the power under Article 32 and confer the committee with the terms of reference,” was SG Mehta’s reply.
The Court eventually adjourned the hearing for tomorrow.
On the last date of hearing, told counsel for the petitioners,
“Any of the petitioners who are interested in the matter and saying things in newspapers, we expect they will answer our queries through a proper debate in court hall and not outside…
…If you want to say anything on social media, Twitter etc it’s your call. But if a debate is going on here, please answer here. Have some respect for the system.”
[Pegasus] Answer our queries through a proper debate in court and not outside: Supreme Court to petitioners
When the matter was first heard, the Court observed that while the allegations in news reports regarding the Pegasus controversy are serious in nature if true, no efforts seem to have been made by the affected persons to file criminal complaints with the police before approaching the top court.
Sixteen international media outlets across the globe including The Wire had published an investigation into the Pegasus software being employed by different governments worldwide, including the Indian government. It was revealed that the numbers of various political adversaries, journalists and Constitutional functionaries were part of the Pegasus list.
This had led to nine petitions before the top court seeking various prayers including a Special Investigation Team (SIT) probe, judicial inquiry and directions to the government to reveal details about whether it had employed the software and how.