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If reports are correct, Pegasus snooping row very serious: SC
“Let somebody appear for the Union of India to accept notice in the matter,” a bench headed by Chief Justice of India NV Ramana said.
The Supreme Court on Thursday agreed to seek a response from the Union government on a clutch of petitions that demanded a court-monitored independent investigation into the alleged surveillance of Indian citizens using Israeli Pegasus spyware and to identify the entities responsible for this.
“Let somebody appear for the Union of India to accept notice in the matter,” a bench headed by Chief Justice of India NV Ramana said. The court fixed August 10 as the next date of hearing and told the petitioners to serve copies of their pleadings on the Union government to ensure that a law officer remains present in the court on the day.
“You please serve copies of the petitions on the Union government. The matter has gotten complicated with too many petitions. Some have challenged the vires of the Information Technology law also. Let someone appear on behalf of the Centre and then we will see,” the bench, which also included justice Surya Kant, told the lawyers appearing for the petitioners.
During the hour-long proceeding, the bench said the allegations were serious in nature if the reports are correct and posed three questions to the petitioners.
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The first was why they came to the court after a gap of almost two years since the first reports on the use of Pegasus spyware were out way back in May 2019. This is a reference to WhatsApp revealing then that NSO’s software had been used to send malware to more than 1,400 phones.
The second question was on whether any of the petitioners lodged a first information report or a criminal complaint against alleged illegal interception of their phones.
The third related to the existence of any empirical evidence to corroborate the claims of the infractions.
The petitioners in the case (through independent petitions) are advocate ML Sharma; Rajya Sabha MP John Brittas; the Editors Guild of India (EGI); journalists N Ram and Sashi Kumar; journalists Paranjoy Guha Thakurta, Rupesh Kumar Singh, Ipshita Shatakshi, SNM Abdi, Prem Shankar Jha; and civil rights activists Jagdeep S Chhokar and Narendra Mishra.
The row erupted on July 18 after an international investigative consortium reported that the phones of many 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 a phone into a pocket spy.
NSO says its software is sold only to government customers after vetting by Israeli authorities. The Indian government has neither confirmed nor denied that it used Pegasus and has repeatedly ruled out any illegal surveillance in India.
“No doubt the allegations are serious in nature if the reports are correct. Except for the petition by the Editors Guild of India, most of the other petitions are based only on media reports. There have to be some verifiable reports etc before we entertain it,” the bench told senior lawyer Kapil Sibal, who was representing Ram and Kumar and led the submissions on behalf of the clutch of petitions.
CJI Ramana further asked Sibal: “These reports about the software came to light in May 2019. I don’t know why there is an urgency now. I don’t know why there was no serious concern about this issue. Why has this issue suddenly cropped up after two years? Still, we are not saying anything against it. The petitioners are resourceful persons, reputed journalists. They should have done something more.”
As Sibal sought to point out that several details regarding the spyware and the extent of interception were not known earlier, justice Ramana went on to enquire: “Some people claim their phones were intercepted. You know that there are provisions to file criminal complaints for violation of the Telegraph Act. We don’t find anything in these petitions that they approached anybody for filing criminal complaints.”
Bombarded with posers reflecting reluctance on the part of the bench to admit the matter, Sibal sought to rely on a finding of a California court. He referred to the Facebook-owned WhatsApp’s suit against NSO in a California court in which the judge held that the surveillance using Pegasus was done at the behest of the government.
“There is already a ruling now that this (technology) infiltrates into our lives without our knowing. Then what it does it hears, surveys every minute of our movement. It is an assault on privacy, human dignity, and the values of our republic, as it infiltrates into the backbone of our nation’s internet system,” argued Sibal.
At this, the CJI replied: “I have read it in one of the petitions that NSO clarified it sells software only to the vetted governments and then it is for the government to decide how to use it… Also, N Ram’s petition says that the California court has said some of the Indian people’s phones were also tapped. But that doesn’t seem to be correct.”
Sibal accepted that there could be some mistake in the petition but emphasised that the EGI has listed 37 specific cases of infiltration.Ram later clarified on Twitter that his petition did not claim anything to the effect.
On being asked by the bench if purchase of Pegasus by a ‘government’ will also include a state government, Sibal retorted that his understanding was that only the central government could buy the spyware.
“This is also something you haven’t answered. Why after two years? The reports came out in May 2019 but you didn’t come then,” the CJI further asked.
Sibal replied: “We have come to know about the extent of surveillance only now. This morning we learned about some officers of this court and a mobile number of a member of the judiciary in the list. How could we file the petition before?”
Justice Ramana retorted: “Truth has to come out. We don’t know who all were there.”
Senior advocate Meenakshi Arora, appearing for CPI (M) MP John Brittas, informed the bench that a question was raised in the parliament on the use of Pegasus in November 2019 when the then IT minister, Ravi Shankar Prasad, made a statement that there was no unauthorised interception.
“Madam Arora. We have a simple question. If you know your phone was hacked, you have the remedy of filing an FIR. Why didn’t you do that? There was no effort to file a criminal complaint,” said the bench.
Representing activist Jagdeep Chhokar, senior advocate Shyam Divan submitted that his client’s phone was on the surveillance list. “This wasn’t a case of simple hacking. For a private citizen to find out that a spyware has been turned against him by his own government is like a State waging a war against its own citizens,” contended Divan.
But the bench replied: “That is not the issue. We want a clarification whether your client has filed any complaint or not.” Divan replied in the negative.
Senior advocate Rakesh Dwivedi, appearing for SNM Abdi and Prem Shankar Jha, said that this was not a case of individual surveillance but was a matter of huge dimension where a foreign company is involved.
And senior advocate Arvind Datar, representing Rupesh Singh and Ipsa Shatakshi whose names also figure in the database, argued that the investigation was a must because there was no other way for a citizen to know the truth.
“Today there are 300 people named. We don’t know how many more will be in the list tomorrow. Who will protect the privacy of citizens of the entire country if not this court?” he added.
As advocate ML Sharma, who was the first petitioner in the case, sought to argue his petition, the bench expressed its displeasure at the manner in which he had filed his plea. “Do you have anything except newspaper clippings in your petition? Do you want us to collect materials for you?” it asked Sharma.
The bench also noted that Sharma made Prime Minister Narendra Modi as a party to his petition. “You’ve impleaded some individuals as parties to your petition. We can’t start issuing notices just like that to everyone,” it told the lawyer, who said he would be deleting the name of PM Modi as a party.
