If Govt Denies Pegasus Use, Will Petitioners Withdraw Petitions? Solicitor General In Supreme Court

The Supreme Court on Monday resumed hearing on the batch of petitions in connection with the Pegasus controversy.

At the outset, Chief Justice N. V. Ramana inquired from all senior advocates appearing in the matter if they have perused the counter-affidavit filed by the UOI-

"You must have seen the affidavit of the State, the government of India? They have denied in the first two pages, and in the last paragraph, they have taken their stand. Why don't you read that paragraph, Mr. SG?"

SG Tushar Mehta proceeded to do as asked, quoting from the affidavit-

"All petitions are based on uncorroborated material and media reports...there is nothing in them...This question stands clarified on the floor of the Parliament by the Minister of Railways, Communications, Electronics and Information Technology. In that view of the matter, in the respectful submission of the deponent, nothing further needs to be done. Petitioners have not made out any case. It is however submitted that with a view to dispel any wrong narrative spread by any vested interest and with an object of examining the issue, the Union of India will constitute a committee of experts which will go into all aspects of the issue"

"I am denying every allegation. This issue is essentially a technical issue. It is one for specialised experts", explained the SG

"So all contents in the affidavits have been denied by you? And still, you are wanting to clarify the issue by appointing a committee of experts?", the CJ asked the SG to confirm.

"The Hon'ble Minister (Ashwini Vaishnaw) made it very clear that this was a sensational story published by a portal a day before the Parliament was about to sit. He has given all the details. His statement has been recorded in the Parliament proceedings which I have verbatim annexed. The minister's response deals with everything, how this hyperbole has started. This is the stand of the central government on merits. However, there is nothing to hide. There is nothing which needs examination, that is the stand. But nonetheless, this is a highly technical issue. This requires specialised expertise. We will appoint neutral, eminent people of the field and they will go into this question and examine the matter and place it before Your Lordships. I don't think the government can be more transparent and fair than this", replied the SG.

Next, the SG asked if the bench would like him to go through the statement of the Minister on the floor of the House as the bench may not have had the occasion to read it. "There are details that earlier also certain claims were made and they were denied", pressed the SG. "It is okay. You have said you have nothing to do. Also, on the first day of the hearing, some counsel has read out the statement made by the Minister", said the CJ.

The bench then heard the battery of senior advocates appearing for the petitioners.

The CJ finally put to the SG, "The sum and substance of the submissions is that the limited affidavit which was filed has not satisfied the petitioners as regards allegation about whether the government has at all used the software or not, or otherwise if somebody used it, have you given any permission. So unless you furnish this information, they are unable to go ahead with the arguments, particularly with regard to the expert committee. You said that because of a shortage of time, you were unable to do it. If you want to file a detailed affidavit of some kind, there is no problem. We can give you some time and you can decide the scope of the committee and what to do and all that, it is for you"

"Your Lordships may give me some time to respond and put the facts in a proper perspective because doubtlessly, we are dealing with a matter which is a sensitive matter. But the attempt here appears to be to make it sensational. My affidavit says that since I have not dealt with the petition paragraph-wise, don't think that I have admitted to anything", responded the SG.

He requested the bench to come to the statement given by the IT Minister in the House, which is reproduced in the affidavit, to indicate that the fact that the cabinet secretary is the competent authority is pointed out on the floor of the House itself. He read from the statement the following excerpt- "Hon'ble Speaker sir, let's look at India's established protocol when it comes to surveillance. The members of the Opposition would be well aware of this protocol as they have been in the government for years. Since they have governed the country, they would also be aware that any form of illegal surveillance is not possible because of checks and balances in our law and the robust system. In India, there is a well established procedure through which lawful interception of electronic communication is carried out for the purpose of national security, particularly on the occurrence of any public emergency or in the interest of public safety, by agencies of the Centre and the states. The request for these lawful interception of electronic communications are made as per relevant rules under the provisions of section 5(2) of the Telegraph Act and section 69 of the Information Technology Act. Each case of interception and monitoring is approved by the competent authority. These powers are available to the competent authority in the state government as per the 2009 IT Rules (which Mr. Sibal had indicated). There is an established oversight mechanism in the form of a review committee headed by the Union cabinet secretary. In case of state governments, such cases are reviewed by the committee headed by the chief secretary concerned. The law also provides the adjudication process for those adversely affected. The procedure therefore ensures that any interception or monitoring of any information is done as per due process of law. The framework has stood the test of time"

The SG continued to submit that should the bench be convinced that the issue needs to be gone into, there will be issues of national security. "I am saying this as an officer of the court, not as a representative of the government, that the matter cannot be as simple that you file an affidavit whether Pegasus was used or not, purchased or not. That cannot be the medium through which Your Lordships' process can be invoked. The Hon'ble Minister who is concerned with the Department with which this issue is associated has given the details of how this Pegasus issue has been raging fires in the last few years. Any answer, any discussion, any facts being placed would necessarily involve a national security concern.There are official interceptions which take place as per law, as permitted by law, as procedure prescribed by the competent authority which is statutorily empowered", told the SG.

"Whatever you want to say, why don't you put it in affidavit form? We will also get clarity for the future- what to do, how to go about it?", asked the CJ.

"I am just posing a question to myself. Even if I filed this one-page affidavit that Pegasus was never used, will they withdraw the petitions? The matter will have to be examined, it will have to be gone into. If Your Lordships are convinced that it needs to be gone into, then I am ready to appoint a committee of experts", said the SG.

"You are saying you need not pick a stand on the issue?", asked CJ.

"The stand is taken in the Parliament. Possibly, the petitioners are trying to go somewhere else than where Your Lordships intend the proceedings to go. If it is a fact-finding enquiry, I have no difficulty and I am fully supporting it. If it is only for sensationalising or something which is alien to the object of 32, then I can't help it", replied the SG.

"You will set up the expert committee for what purpose?", asked the CJ.

The SG then drew the attention of the bench to the statement of the IT Minister in the Parliament on the Pegasus issue, urging the House to examine what NSO, the company which owns the technology, has said. The Minister had indicated the response by NSO, in which it called the 50,000 number (of potential targets) "exaggerated" and said it was far too large to represent numbers targeted by its clients. The NSO said that it had reason to believe that the media consortium 'Pegasus Project' was basing its findings "on misleading interpretation of leaked data from accessible and overt basic information, such as HLR Lookup services, which have no bearing on the list of the customers targets of Pegasus or any other NSO products" and that it does see any correlation of these lists to anything related to use of NSO Group technologies. The Minister had indicated that the NSA has also said that the list of countries shown using Pegasus is incorrect and many countries mentioned are not even its clients, and that it also said that most of its clients are western countries. "It is evident that NSO has also clearly rubbished the claims in the report", the Minister had said.

The SG continued to submit, "There is a statutory provision in place, there are rules, committees are there, review committees are in place, and that is how whatever interception was done, possibly for national security, is done. Whether the names are correct or whether there is any basis, it needs to be gone into. I am showing my bona fides. Allow us to have a committee of experts, let them go into it- whether at all something has been done, whether the Centre has done something or whether a state government has done, who has done.This is, on the contrary, showing the good faith decision or response of the government. According to us, a false narrative, which is created, is the ground on which the country is debating. We have made it clear before the Parliament that we have gone as per the statutory regime. If there is any other purpose behind the petitions of which I am not aware, I can't help"

"What you are reading from the statement of the minister is based on what NSO has said. But here, we have the petitioners. The second statement of the minister is with regard to some official protocol being followed. Whether protocol has been followed or not, that is the domain of the Cabinet Secretary under the Rules. Affidavit on facts can be filed by them. If they don't want to file, then the question of constitutionality would arise", observed Justice Surya Kant.

"All these questions can only be gone into by technical experts. If the petitioners withdraw by my filing an affidavit saying 'no', I have no difficulty. Let them say they will withdraw. Otherwise, then also they will say whether the 'no' is right or wrong needs to be examined by some committee", replied the SG.

"How will a technical committee examine the questions of permissions by authorities?", asked the CJ.

"They can be authorised by the court. Mr Dwivedi said that a government committee may not be permissible. I am not saying the committee will have government officers. I am saying the government will appoint a committee of neutral, independent experts", said the SG.

"The experts can go into the angle of whether particular software was used or not in a phone. Only to that extent they can go. The other issue regarding procurement, non-procurement, sanctions, permissions, which agency, state or otherwise, has to be examined by somebody. Who will do that?", asked the CJ.

"Let the experts examine that also. Your Lordships will confer them with the jurisdiction. There is nothing to hide. Please accept the bona fide gesture of the government. I have no difficulty", repeated the SG.

"We are not saying anything against the government. That is not the issue. The issue is that there are areas where the technical committee cannot go. These are issues which have to be seen by somebody else", observed the CJ.

"Under 32, Your Lordships can confer the committee with whatever terms of reference you would want to incorporate. They would be carrying the mandate of the Court then!", urged the SG.

"The committee may go into whether any such device was used, maybe by the Centre. by the state or by the private party. Your Lordships may lay down the terms of reference of the committee. I differ with Mr Dwivedi that a government-appointed committee will not be trusted. According to me, it should be trusted. That is all I can say. Everybody who says my phone was intercepted are basing their argument on all those reports by some headquarters that A was also in the list, B was also in the list, C was also in the list", continued the SG.

As a sideline, he proceeded to say that the IT Act is a beautiful piece of legislation. "Incidentally, it was made during Mr Sibal's tenure. Unfortunately, there was a section 66A. Mr Diwan's client challenged it. I defended it before Justice Nariman. There is a reported judgement (Shreya Singhal v. UOI; 2015). Otherwise, it is a comprehensive Act, taking care of every situation. You cannot go beyond it"

At this, Mr. Sibal interjected to submit, "All that we want from the government is whether they or any of their agencies used Pegasus. There is no national security issue there, there is no revelation there. It is just a statement of fact. If they did not use it, that puts an end to this controversy"

"Will all of you withdraw the petition then?", asked the SG.

"I will tell you something about beauty, beauty over the years is no longer beautiful. It might be a beautiful statute but over the years it has lost its beauty by the way you are using it. So let's not talk about beauty. If they say they did not use Pegasus, then we will have other submissions to make. If they say they did use it, then the question is whether use was through the home secretary or outside. That is not a revelation of any security secret, it does not endanger our security", replied Mr. Sibal.

"Pegasus is a technology which enters your phone through a vector, it will not go through the Home Secretary. So the question is whether the Pegasus was used by the government, any agency and if the Home Secretary knew about it. If he doesn't, he will say on affidavit that I don't know anything about it. Issue of the committee, what should be done, what should not be done, will be gone into later. Let them file an affidavit as to whether the government or its agency never used Pegasus. That will not reveal any national secret. That is all we want for the moment. He is relying on a statement by a minister that says nothing about it. The statement has to be made by home secretary on oath before Your Lordships", stressed Mr. Sibal.

"When the government is reluctant, they say we have filed this and we don't want to file anything more, how can we compel them?", asked the CJ.

"I am not reluctant. I am only saying even if I did so, the petition would continue for other reasons", advanced the SG.

"Let them say on oath that they don't want to say anything. Give them another opportunity. Then we can argue other issues. We just want to clarify if they don't want to admit or they don't want to deny the use of Pegasus. We have no problem with that also. I can also argue then that they have not denied. Then the matter gets more serious, if you ask me", continued Mr. Sibal

Justice Surya Kant asked Mr Mehta to come to the affidavit that they have filed. "It reads 'I am therefore filing this limited affidavit at this stage by reserving liberty to file a further response'. It is by a responsible officer so we will presume you have more to say", the judge indicated.

"That is a routine sentence. 'If need be', the liberty to respond more is always reserved. Your Lordships are aware there is a format", replied the SG.

The CJ then addressed Mr. Diwan- "We had said that in case the SG admits he will file an affidavit, there is no need for you to spend any time. Now it seems he does not want to"

"My take is that even if I file an affidavit, Your Lordships' time will be wasted", urged the SG.

"I am not compelling you to file one", said the CJ.

"There is no reluctance on our part in filing one. If they are withdrawing, I have no difficulty. I am saying the truth must come out", said the SG

"We will continue tomorrow. You also take instructions, if you have any change of mind...This the simple issue of filing the affidavit or not", observed the CJ, the bench rising.

Adjourning the hearing to Tuesday, the CJ clarified, "We are confining ourselves to the issue of whether there should be an affidavit or not".

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