Supreme Court Wants To Know If Centre Will File Affidavit On Using Pegasus; Adjourns Hearing To Tomorrow

Seeking to know if the Union Government wants to file an additional affidavit on using the Pegasus spyware, the Supreme Court on Monday adjourned the hearing of a batch of PILs seeking probe into the snooping controversy till tomorrow.

The Centre had filed a "limited affidavit" today denying the allegations of the petitioners and also expressing the willingness to form a committee to examine the issue to dispel "any wrong narrative by vested interests".

In the hearing today, the petitioners' lawyers repeatedly highlighted that the Union Government has evaded answering the question if it or any of its agencies have ever used the Pegasus spyware. The petitioners urged the Court to direct the Union to come clean on this issue.

Solicitor General of India Tushar Mehta, appearing for the Centre, said that the issue involved aspects of national security and was not simple enough to be addressed through affidavits. He asked if the petitioners will withdraw the petitions if the Government denies using Pegasus.

After a long hearing which lasted for nearly two hours, the bench adjourned the hearing to tomorrow, to see if there is any "change of mind" on the part of the Centre as regards filing an additional affidavit.

"We will continue tomorrow. If you have a change of mind, let us know tomorrow. If Mr.Mehta may decide to file an affidavit, then we have nothing to say, else we will hear all of you", the Chief Justice of India said before winding up today's hearing. The bench said that it cannot compel the Centre to file an affidavit if it is "reluctant" to do so.

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Aniruddha Bose was hearing a batch of petitions seeking a court-monitored probe by a Special Investigation Team or a judicial probe into the reports of snooping of activists, journalists, politicians and constitutional authorities using the Pegasus spyware.

On August 12, the Solicitor General of India Tushar Mehta had sought time to get instructions from the Union Government as regards the response to the pleas.

Today, when the hearing started, the Solicitor General informed the bench that the Union of India has filed a "limited counter-affidavit" in the matter.  In its two-page affidavit filed by the Additional Secretary in the Ministry of Electronics & IT,  the Centre denied all allegations raised by the petitioners as "based on conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated materials".  Referring to the statement made by Union IT Minister Ashwini Vaishnaw in the Parliament on the Pegasus issue, the Centre's affidavit stated that nothing remains to be done in the petitioners, "more particularly when the petitioners have not made out a case". Also, the Centre said that "it will soon set up a Committee of Experts examine all issues raised in the Pegasus controversy to dispel any wrong narrative spread by certain vested interests".

"This is a technical issue. It needs specialized expertise. We will appoint neutral eminent people of the field. I don't think government can be more transparent and impartial than this", the Solicitor General submitted.

Government must state on oath if they have used Pegasus or not : Sibal

Senior Advocate Kapil Sibal took objection to the "limited affidavit" filed by the Centre citing shortage of time.

"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.  This affidavit does not answer the issues raised by the petitioners", Sibal, appearing in the petitions filed by journalists N Ram and Sashi Kumar submitted.

 Sibal also submitted that the Government has made a sweeping denial of the petitions in generic terms.

"They must state why facts stated in petition are wrong and that government of India or its agencies has nothing to do with Pegasus", he said.

Sibal also pointed out that the former IT Minister had told the Parliament in 2019 that nearly 121 Indians' phones were targeted by Pegasus.

"This was in 2019. What have they done till then? That's why they don't want to respond on facts. This is a serious question, as many have said their phones were infiltrated", Sibal said.

Judiciary and media attacked : Sibal

Sibal said that the issue was not about individuals but about "institutions". It is the judiciary and the media which protect democracy and both have been attacked by Pegasus, he said. He referred to the reports of the officials of the Court figuring in the potential list of Pegasus targets.

We don't want a Government might used Pegasus to set up a committee : Sibal

"We don't want the government which might have used Pegasus to set up a committee. Where is the question of committee coming? They should be given enough time to submit an affidavit on facts", Sibal submitted.

Home Secretary should file the affidavit : Sibal

Sibal pointed out the the affidavit of the Centre has been filed by the Additional Secretary of the Ministry of Electronics and Information Technology. However, the competent authority notified to carry out interception and encryption of electronic devices as per Section 69 of the IT Act is the Secretary of the Ministry of Home Affairs. Therefore, the competent authority to file the affidavit is the Home Secretary, Sibal submitted.

"If there is a lawful interception, the Home Secretary would know. If he says he does not know, then the interception would be outside the law", Sibal said.

He pointed out that the governments of the United States of America and France have started probe into the matter. Even the Government of Israel has raided the offices of NSO Technologies, the company which developed Pegasus. "But the Government of India says everything is fine. With due respect, this is not acceptable", Sibal submitted.

He urged the Court to direct the Government to make a clear statement in this regard.

 Minister does not say Pegasus was not used : Rakesh Dwivedi

Senior Advocate Rakesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta(whose phone has been reportedly hacked by Pegasus), submitted that even the Minister's statement before the Parliament does not make a categorical denial of using the Israeli spyware.

"The petitioner's phone was infiltrated. There is an analysis done by Amnesty. I would have been happy if Government said the spyware wasn't used. What's important is if it was used against me", Dwivedi said.

He further added that the an expert committee constituted by the Government will not enjoy the confidence of the public and the petitioners.

Senior Advocate Shyam Divan, appearing for activist Jagdeep Chokkar, also made similar submissions.

Divan also submitted that he has made a specific prayer to direct the Cabinet Secretary to respond to the issues, instead of the Secretary of any individual ministry.

Centre's affidavit "delightfully non-committal" : Arora

Senior Advocate Meenakshi Arora, appearing for Rajya Sabha MP John Brittas of CPI(M), said that the Government's affidavit was "delightfully non-committal" on the question of using Pegasus.

Attempt to make "sensitive matter sensational" : SG responds

While responding to the petitioners' submissions, the Solicitor General at the outset said that there is an attempt to make the matter, which is sensitive, "a sensational matter".

The matter involves issues of national security. The matter cannot be as simple as filing an affidavit. The concerned Minister has given details of the issue before the Parliament. Any facts being placed before the Court would involve the national security aspect.

"Whatever you want to say, why don't you put in an affidavit?", the CJI asked the SG.

"I'm posing a question to myself, if I file an affidavit saying Pegasus was never used, will they withdraw their petitions? If lordships are convinced it needs to be gone into, we are ready to make a Committee", the SG replied.

Even if it is said that the Government has not used Pegasus, the petitioners will again press for enquiry on whether the Government's 'No' is true, the top law officer of the Centre contended. He also asked what was the real intention and purpose behind the petitions.

The SG reiterated that the Minister has clarified the issue before the Parliament. He stressed that there are established processes for interception. Nevertheless, to show the bona fides, the Government is willing to form a Committee, the SG said.

"This will debunk the false narrative, and bring out the truth. Whether Central Government has done, or State Government has done", the SG said.

Can the proposed committee examine aspects of authorization? CJI asks

The Chief Justice of India asked if the proposed technical committee will be able to go into the issue of aspects regarding legal compliances and authorizations.

"How will the technical committee check what authorizations have been given? What contracts etc.... there are two issues...the experts can check what particular software was used. The issue of permission, sanction, procurement , non procurement etc, who will examine that?", the CJI asked.

The SG replied that the Court may confer the committee the powers it may deem fit.

Saying that he was disagreeing with the view expressed by Dwivedi, the Solicitor General said  "the committee formed by the Government must be trusted".

No national security issue here : Sibal

In response, Sibal said that the petitioners are only seeking a factual statement from the Government if it used Pegasus, and so it does not involve any national security.

"Let them say if the government used it(Pegasus) or not, That will not reveal any national security issue", Sibal submitted.

When the SG asked if the petitioners will withdraw the petitions if the Government denies using Pegasus, Sibal replied that the petitioners will have alternate submissions to make then.

The CJI said that the Court cannot compel the Government to file an affidavit.

"If the government is reluctant and say they don't want to file an affidavit, how do we compel them?", the CJI said.

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