The Himachal Pradesh government told the Supreme Court that orders like the one issued by the high court have a demoralising effect on the state bureaucracy (Burhaan Kinu/HT PHOTO)
The Himachal Pradesh government told the Supreme Court that orders like the one issued by the high court have a demoralising effect on the state bureaucracy (Burhaan Kinu/HT PHOTO)

Govt won’t reveal if it used Pegasus, SC told

Supreme Court says it will pass an interim order after the govt refuses to file affidavit disclosing whether spying software used against individuals
By Utkarsh Anand, Hindustan Times, New Delhi
UPDATED ON SEP 14, 2021 03:45 AM IST

The Union government on Monday told the Supreme Court that it cannot make public whether its agencies used Israeli spyware Pegasus for mounting surveillance on Indian citizens since such disclosure will be against national interest, returning to a position it articulated on August 17, before suggesting last week that it could reconsider its stand.

This prompted the court to remark that the Centre is “beating around the bush”.

The government is open to having a committee of independent domain experts who can go into all aspects of the controversy and submit its report before the bench
The government is open to having a committee of independent domain experts who can go into all aspects of the controversy and submit its report before the bench

A bench, headed by Chief Justice of India NV Ramana, reserved its order on a clutch of petitions demanding a court-monitored probe into the alleged surveillance using Pegasus spyware after an 80-minute hearing during which the government refused to share any information on the use of Pegasus or the alleged snooping on some of the petitioners.

The bench, which included justices Surya Kant and Hima Kohli, said that the court will pass an interim order in the next 3-4 days on the constitution of an expert committee and other ancillary issues related to an independent inquiry after considering the materials placed by the petitioners and the submissions made by their lawyers.

After seeking time last Tuesday to reconsider its previous stand against filing a detailed response on the bunch of petitions, solicitor general Tushar Mehta reiterated on Monday that the use of a particular software like Pegasus cannot be a subject matter of any affidavit or a public debate.

The government is open to having a committee of independent domain experts who can go into all aspects of the controversy and submit its report before the bench, Mehta said, but the use of a particular software “cannot be made a part of the public discourse in the larger national interest and in the interest of the security of the nation”.

The law officer said the government stands by its August 16 affidavit filed on the Pegasus snooping matter, which neither confirmed nor denied the use of the military-grade spyware to hack phones of ministers, politicians, businessmen, activists, and journalists, and which offered to set up an expert committee instead.

The bench remained unimpressed with S-G’s contentions. “We said it very clearly even on the last date that nobody is interested in the disclosure of information that could compromise national security. We wanted a limited affidavit from you because we have petitioners before us, citing violation of their privacy...In the face of the allegations that some software was used to snoop on certain individuals like lawyers and journalists, it had to be made known whether there are methods of interception other than lawful means,” the court told Mehta.

Observing that the S-G was “going in circles” despite the court’s repeated clarification on issues of national security, the bench added: “In your affidavit, you could clarify whether there was a lawful interception of the petitioners or not. And if there was any unlawful interception that was not in your knowledge, then it should be a matter of your concern too. Then, we can pass some directions on guidelines, legislative measures, etc.”

Mehta, however, repeated that the government would not disclose whether it used Pegasus or not because that would have its pitfalls and such information could be used by terror groups to hamper the security of the nation.

“You are going in circles again and again as if we want to know everything that the government is doing. These are serious allegations that phones were tapped through software and entire privacy was taken. Your minister also took note of the use of this software in his statement in the Parliament in 2019. We wanted a further affidavit to know where we stand...beating around the bush is not an issue here,” the court retorted.

It further observed: “If the allegations are true, there are definitely effects (of such surveillance). There are different issues involved here. There is one issue about the technology; then there are issues of legal provisions of interception; there are issues of NSO making such services available to entities...We wanted a further affidavit and depending on that we could proceed. But now you have chosen not to do so, we will pass some interim orders.”

Mehta, on his part, maintained that a facade is sought to be created that the government is hiding the truth whereas its stand is clear that it is not evading any inquiry but is rather willing to have it done on its own through a committee of independent experts.

This submission was strongly objected to by petitioners’ lawyers, including senior counsel Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Colin Gonsalves and Meenakshi Arora. All these lawyers condemned the Centre’s refusal to come clean on the use of Pegasus while also urging the court to reject the government’s proposal to form a committee by itself.

Sibal referred to a statement made by Ravi Shankar Prasad, the then Union law and IT minister, in Parliament in response to a question by AIMIM chief and lawmaker Asaduddin Owaisi. Prasad admitted that WhatsApp had notified the government about attempts to hack the phones of more than 100 users in India. Sibal said that the government is impeding the course of justice by keeping relevant information hidden from the highest court of the land and it indicates that the government has been using Pegasus against the citizens without any legal sanction.

Most of the lawyers for petitioners pointed out that the government, being the “wrongdoer”, cannot be allowed to have a committee by itself and that the court should set up a panel consisting of members of its choice to go into the issue and report back.

While Divan pressed for a directive to the cabinet secretary to file a “disclosure affidavit”, Dinesh Dwivedi asked for an interim order to restrain the government from using Pegasus against anyone.

Mehta, at this point, reiterated that the court should allow the government to set up a committee, which, he said, will have experts completely unconnected with the government.

“Suppose a committee examines it and places its report before us, then also everything will come into public domain...but ultimately it is your prerogative and you have decided not to file anything. We will now pass an interim order that we have to pass,” replied the bench, reserving its order.

The Pegasus row erupted on July 18 after an international consortium of media outlets and investigative journalists reported that the phones of Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 that were potentially targeted by Pegasus, Israeli company NSO Group’s phone hacking software. According to this consortium, Pegasus can switch on a target’s phone camera and microphone, as well as access data on the device, effectively turning the phone into a pocket spy.

Responding to a bunch of petitions filed by lawyers, politicians, journalists and civil rights activists, the Union ministry of electronics and information technology filed a three-page affidavit on August 16 that refused to confirm or deny whether it had used Pegasus spyware for surveilling Indians. The Centre instead offered to set up an expert committee to look into the controversy and “dispel any wrong narrative spread by certain vested interests”.

On August 17, the court observed that it is “not averse” to set up an expert committee to look into the alleged surveillance of Indian citizens with Pegasus spyware but that it expects the government to bring sufficient facts on record regarding the interception regime in India.

The government, however, replied that any disclosure on its using or not using Pegasus spyware would come at the cost of national security and insisted that it will divulge such information only before the proposed committee, which, it said, can report to the top court.

It also added that all interceptions were being done per the statutory procedure, and it would not wish to put out in the public domain details of the software used for lawful surveillance by filing any additional affidavit.

Following the Centre’s refusal, the court on August 17 issued a formal notice to the government on the batch of pleas filed by petitioners in the case, a list that includes advocate ML Sharma, former minister Yashwant Sinha, Rajya Sabha MP John Brittas, the Editors Guild of India, journalists N Ram and Sashi Kumar, journalists Paranjoy Guha Thakurta, Rupesh Kumar Singh, Ipshita Shatakshi, SNM Abdi, and Prem Shankar Jha, and civil rights activists Jagdeep S Chhokar and Narendra Mishra.

Deferring the matter for September 7 , the bench had once again asked SG Mehta to consider filing a detailed reply while observing that the court would ponder over the future course of action in the meantime. On September 7, the S-G asked for some time to reconsider its earlier stand, following which the matter was fixed for hearing on Monday.

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