Pegasus -Serious Allegations If Reports Are True; Truth Has To Come Out : Supreme Court

Courtroom Exchange

When the matter was taken, the CJI remarked at the outset that the "allegations are serious, if the reports are true".

"Before going into all that, we have certain questions. No doubt, the allegations are serious, if the reports are true".

However, the CJI raised two queries repeatedly :

1. Why the individually aggrieved petitioners have not filed FIRs?

2. Why the petitions are filed now though Pegasus issue surfaced in 2019?.

CJI also remarked that the petitions are based on newspaper reports and the petitioners could have put in more effort to collect verifiable materials, as most of them are knowledgeable and resourceful journalists and activists.

Senior Advocate Kapil Sibal, appearing for journalists N Ram and Sashi Kumar, replied that the extent of the Pegasus attack was only known now after the reports of Citizen Lab. And, individuals have no means to access the materials as Pegasus sells its services only to the Governments. In this regard, he referred to the proceedings instituted by Whatsapp against NSO technologies, the Israeli company which has developed Pegasus, to state that only governments can purchase the spyware services.

"Governments can also mean state government", the CJI observed then.

Sibal replied that he is not aware of that and given the scale of allegations, a comprehensive enquiry is needed.

Sibal also referred to "sensitive reports" regarding the inclusion of member of judiciary, and officials of the Court in the potential list of Pegasus targets.  He added that the numbers of lawyers, public figures, constitutional authorities, activists etc are included in the list, as if they were all terrorists.

"Truth has to come out, that's a different story. We don't know whose names are there", CJI then said.

Senior Advocate CU Singh submitted that hat the names of the persons targeted were not known in 2019. The names were known after a forensic analysis was done by an international agency.

Senior Advocate Meenakshi Arora, appearing for CPI(M) Rajya Sabha MP John Britttas, referred to a statement made by the former IT Minister Ravi Shankar Prasad  in Lok Sabha on the Pegasus issue that "to the best of his knowledge, there was no unauthorized interception".

"If you have said in 2019 that you have not done, and now it is known that it has been done, there is a need to investigate", Arora submitted.

"If you know that your phone is hacked, why are you not filing an FIR?", CJI then asked.

Foreign governments have launched investigation : Divan

Senior Advocate Shyam Divan, appearing for activist Jagdeep Chhokkar who is reported to be a Pegasus target, told the bench the Governments of USA and France have launched investigation into Pegasus reports and have sought the responses of Israel government. He said that these are not "some media reports" and are extensive investigative reports backed by forensic examinations.

"For a private citizen to find out that a spyware has been turned on him by the govt, it is something per se unconstitutional. It constitutes a war by the government on the citizen", Divan argued.

Given the dimensions of the case, a high level investigation by an independent committee is needed. Divan further said that response must be given by a high level bureaucrat who has access to different ministries, some one like a Cabinet Secretary.

"We don't want a situation here where some individual ministry says I don't know anything based on my documental records", Divan urged.

No provision for filing FIR: Datar

Senior Advocate Arvind Datar, appearing for journalists Rupesh Kumar Singh and Ipsa Shataski, who were in the Pegasus targets list, submitted that as per Section 43 of the IT Act, one can file suit for damages. However, it is not known as to who has hacked the phones. Therefore, civil remedy is useless

He added, "The criminal provision in IT Act Section 66E refers to infringement of privacy in relation to bodily parts. That is not applicable here. Therefore, there is no provision for filing FIR."

Datar further submitted,

"There are two parts in the case. There are rights in rem. And there are individual cases. As far as individual cases, there is no remedy other than suit under Section 43. As far as privacy, the provision only deals with body parts."

On issue of Privacy

Datar continued that the Supreme Court has held that privacy is not just physical privacy and includes mental privacy.

"Supreme Court has held privacy permeates through Part III. This is a matter concerning Art 21…IT Act, when they amended in 2009, never contemplated such a sophisticated attack. So judiciary has to take a vanguard position…Today 300 people have come to light. God knows who many else are there," he remarked.

Pegasus can even take photos and videos: Sibal

During the hearing, Senior Advocate Kapil Sibal, appearing for N Ram and Sashi Kumar alleged that the Pegasus spyware can even take photos and videos. "That means if I move around in my private moments, they can watch me. They can activate my camera, my mic," he alleged while urging the Court to issue notices on the petition.

Who operates the Spyware?: Sibal

Sibal sought to clarify that there is no direct access to the materials. "Pegasus is a rogue technology which enters our lives without our knowledge. It surveys every minute of our moment…It is an assault on privacy, dignity and values of our republic…The petitions have information about 10 cases of direct infiltration," he said.

Sibal further referred to the suit filed by Whatsapp against NSO in California court. He told the Court that once activated, the target device is connected with the Pegasus malware.

"The malware would then enable and then data is transferred… This information is given to NSO technology. That is far more serious. This is a court finding. Nobody can dispute Pegasus infiltrates," Sibal stressed.

Why did Indian Govt not take action against NSO?: Sibal

Sibal referred to a question asked by AIMIM Chief Asaduddin Owaisi in the Parliament on Pegasus and submitted that the Government has not disputed that 121 users from India were targeted. "This is the Minister's statement itself", he added.

Sibal further remarked,

"I want to ask one simple question. If the Government of India knows this was happening, why did they not take action against NSO technologies. Why did they not lodge an FIR? This is a matter of citizens' rights. Why did they keep quiet? I'm told that it costs about 55,000 dollars to penetrate one phone. So who bought this?" Larger issue involving constitutionality and not just criminality: Dwivedi

"As regards filing complaint, this is a matter of very wide dimensions. This is not a case of an individual's phone has been bugged. It is a mass action. It is a case where the Government of India should have taken action on its own…This is a larger issue involving constitutionality and not just criminality…Ordinary individuals - writing on issues that concern Govt cannot be subjected to surveillance," he responded to the CJI's query.

Bench pulls up ML Sharma

During the hearing, the Bench also expressed displeasure at Sharma's petition.

"Mr. Sharma, except newspaper cutting, what is there in your petition. What purpose you have filed the petition? You want us to collect the material and argue your case. This is not the way of filing a PIL. We also read newspapers," the Bench said.

The bench also took exception to the fact that Sharma has added Prime Minister Narendra Modi as a respondent in his personal capacity in the writ petition.

The Pegasus controversy erupted on July 18 after The Wire and several other international publications published reports about the mobile numbers which were potential targets of the spyware service given by NSO company to various governments, including India. 40 Indian journalists, political leaders like Rahul Gandhi, election strategist Prashant Kishore, former ECI member Ashok Lavassa etc are reported to be in the list of targets, as per The Wire.