Ready to form probe panel on Pegasus to dispel narrative: Govt

Aug 17, 2021 12:10 AM IST

A bench, headed by Chief Justice of India NV Ramana, is set to hear a clutch of demanding a court-monitored independent investigation into the alleged snooping later in the day

NEW DELHI The Union government on Monday refrained from confirming or denying in the Supreme Court, its use of the Pegasus spyware for alleged surveillance of Indian citizens even as it offered to set up an expert committee to look into all aspects of the controversy and “dispel any wrong narrative spread by certain vested interests”.

Supreme court . photo H.C.Tiwariji (HT)
Supreme court . photo H.C.Tiwariji (HT)

A bench, headed by Chief Justice of India NV Ramana, asked solicitor general Tushar Mehta repeatedly during the proceedings whether the government will come clean on the purchase or use of Pegasus. The S-G, however, maintained that a committee of experts should rather be allowed to delve into the issue, adding “whatever interception was done, it was done in the interest of national security”.

The bench asked Mehta why the government shouldn’t file an additional affidavit so that the court could have clarity regarding all the averments made by them. “An affidavit of facts can be filed by you. If you don’t want to file the additional affidavit, then only the question of the committee will come up,” the CJI told the S-G.

The S-G, however, urged the bench to rather have a technical committee of “some neutral and eminent experts” who could examine all the aspects and submit a report before the court instead of imploring the government to clarify anything on the use of Pegasus.

At this point, the bench adjourned the proceedings for Tuesday, asking Mehta to revert if there is a “change of mind” on making a statement on the use of Pegasus.

In its three-page affidavit filed nearly an hour before the top court was to consider a clutch of petitions for a court-monitored independent investigation into the alleged snooping, the Union government contended that the petitions “are based on conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material” and, hence, failed to make out any case to invoke writ jurisdiction.

“It is, however, submitted that with a view to dispel any wrong narrative spread by certain vested interests and with an object of examining the issues raised, the Union of India will constitute a committee of experts in the field which will go in to all aspects of the issue,” stated the affidavit, filed by the Ministry of Electronics and Information Technology.

While the affidavit said that the government “unequivocally” denies “any and all of the allegations”, it did not answer whether the Union government or any agency authorised by it used Pegasus for surveillance and was in possession of any information obtained using the spyware.

The law officer argued that the petitioners were unlikely to withdraw their cases even if the Centre was to state on an affidavit that it did not use Pegasus and, therefore, the court should approve the creation of the expert committee by laying down the terms of references for the panel of experts, who will be given access to all the relevant information available with the government and its agencies.

“There will be issues of national security if this court decides to go into it. With all respect, there cannot be an adjudicatory process invoked by the petitioners to seek answer whether Pegasus was bought or not. There cannot be a question like you first tell us whether you bought Pegasus or not... Any debate or deliberation will invoke issues of national security. It is a known fact that lawful interceptions take place,” Mehta submitted before the bench, which also included justices Surya Kant and Aniruddha Bose.

The S-G emphasised that the government “has nothing to hide” and that the proposal to set up the committee is to show their bona fides in a “sensitive” matter, which he claimed, is being made “sensational” by the petitioners for reasons best known to them. He pointed out that the government’s position on the alleged snooping has already been clarified in Parliament by IT minister Ashwini Vaishnaw by rejecting all the accusations.

Senior advocate Kapil Sibal, appearing for senior journalists N Ram and Sashi Kumar, emphasised that the question of a committee or its composition will come only after the government tells the court whether it used Pegasus or not.

“I am concerned about two pillars of democracy, judiciary and journalism. These are the institutions which protect the rights of the people. They cannot be penetrated in this manner by spyware. Let the government state on oath they have not used Pegasus. Our future arguments have to be on the basis of their statement,” said Sibal, adding a confirmation or denial on the use of the spyware will not affect national security.

On his part, senior advocate Shyam Divan, who represented the Editors Guild of India, argued that issues of violation of privacy and constitutional rights cannot be dealt with by the government through “a skimpy, two-page affidavit”.

Appearing for journalist SNM Abdi whose name was reportedly on the list of people targeted for snooping, senior counsel Rakesh Dwivedi also highlighted that the government has said nothing about using the spyware and that the purpose and role of the committee can be examined only after there is a specific answer in this regard.

“If the government is reluctant and is saying they don’t want to file an affidavit, how do we compel them?” the bench told the petitioners’ lawyers, adding it will hear them on Tuesday.

The petitioners in the case include advocate ML Sharma; former minister Yashwant Sinha, Rajya Sabha MP John Brittas, the EGI, journalists Ram and 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.

Senior advocate Mukul Rohatgi appeared for WhatsApp in the case and said that the messaging platform has nothing to do with Pegasus.

The Pegasus row erupted on July 18 after an international investigative consortium 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 a phone into a pocket spy.

In the first hearing of the batch of petitions on August 5, the top court said the allegations were serious in nature if the reports were correct and called for a law officer of the government even as it posed three questions to the petitioners.

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 back in May 2019. This was a reference to WhatsApp revealing then that NSO’s software was 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.

On August 10, Mehta, representing the Centre, was given time to get instructions on the matter from the government. During that hearing, the court also took exception to a “parallel debate” by petitioners outside the courts on the alleged surveillance of Indian citizens with the Pegasus spyware, saying if they are using the legal system, they must have faith in it. The court asked the petitioners to refrain from debating the issue on public platforms while it was adjudicating the matter.

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