SC issues notice to Centre on Pegasus pleas
NEW DELHI: The Union government told the Supreme Court it has nothing to add to its affidavit on the Pegasus snooping matter filed on Monday that neither confirmed nor denied the use of the spyware to hack phones of ministers, politicians, businessmen, activists and journalists, following which the bench, headed by Chief Justice of India NV Ramana, issued a formal notice to it on a clutch of petitions demanding a court-monitored independent investigation into the issue.
The court observed that it is “not averse” to the creation of an expert committee to look into the alleged surveillance of Indian citizens using the Israeli spyware -- as suggested by the government -- but that it expected the Union government to bring sufficient facts on record regarding the interception regime in India.
The government, however, maintained that any disclosure on its using or not using Pegasus spyware could affect national security, and reaffirmed its stand of divulging such information only to the proposed committee which, it added, can report to the top court.
In line with its response a day ago, the government said that all interceptions were being done in accordance with the statutory procedure and it would not wish to put out in public domain details of software used for lawful surveillance by filing any additional affidavit.
On Monday, the government filed a three-page affidavit offering to set up an expert committee to look into all aspects of the controversy and “dispel any wrong narrative spread by certain vested interests”. It further 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.
The bench, which included justices Surya Kant and Aniruddha Bose, asked solicitor general
Tushar Mehta to reconsider filing a detailed reply in 10 days while observing that the court will ponder over the future course of action in the meantime.
“We are not averse to a factfinding or investigating committee...We will issue notice and then we will take a call on whether a committee is to be appointed -- whether it is to be a committee of experts or some other committee,” remarked CJI Ramana.
During the proceedings, the bench asked the S-G repeatedly whether the government wanted to apprise the court on charges related to illegal interception of phones through Pegasus by adding to what the three-page affidavit stated.
But Mehta was emphatic that the reply filed on Monday morning was “sufficient” and that the matter now be handed over to an expert committee for ascertaining all aspects of the controversy.
“They (petitioners) want the government of India to divulge which software is not used. No country would ever reveal which software they have used or not used. Then the persons who are being intercepted may take preemptive or corrective steps. Therefore, this cannot be a subject matter of affidavit and public debate. There are issues of national security,” submitted Mehta.
He added: “We have nothing to hide...We will have a committee of experts. Let the committee report to Your Lordships. Whether we are using, what we are using, for what we have used, if at all we have used -- everything will be before the committee. And the committee will eventually report to this court.”
The bench insisted: “None of us will want to compromise with the security of the nation or defence. Here, the issue is very different. There are citizens, who are civilians, some of them are persons of eminence, who are complaining of hacking or interception of their phones... What is the problem if that competent authority filed an affidavit before us?”
It added: “All that we are saying is that we will issue a simple notice in this petition. Let the competent authority under the rules (Union home secretary) take a decision as to what extent, what information is to be disclosed. As regards the course of action, then we will evolve and see what is to be done and what is not to be done.”
The S-G responded citing concerns of national security and said any statement by a country about using or not using a particular spyware will prompt the terrorist organisations to modify their communication modules accordingly and escape tracking.
“But the government does not mind saying it before an expert committee which would come before Your Lordships who can consider thereafter what steps need to be taken... We are not saying we won’t tell it to anyone. We are saying we will not say it publicly,” asserted Mehta.
At this, the CJI remarked: “We are not compelling you to divulge what you don’t want to disclose. Tentatively what we are thinking is we will issue notice before admission and we will wait for some time. Then, depending upon what transpires, we can look into the aspect of constituting a committee, or what else to do. That is an option, unless you want to say something else.”
Mehta replied by requesting the court to consider permitting the government to constitute a committee of experts.
“We are not averse to a factfinding or investigating committee. But that is not the issue. We will see as to that when we reach that point...We thought the competent authority would be able to reply comprehensively but now you have filed this (short) affidavit. Let us think how to go over with this matter,” retorted the CJI.
Senior advocate Kapil Sibal, appearing for senior journalists N Ram and Sashi Kumar, submitted that security of the nation is as important to the petitioners as to the government but for enabling the case to proceed, it was incumbent upon the government to disclose if it used Pegasus.
The CJI replied: “We are on the same page as far as concerns of national security is concerned. Let the matter come after 10 days and we will discuss the future course of action in the meantime.”
The petitioners in the case include advocate ML Sharma; former minister Yashwant Sinha, Rajya Sabha MP John Brittas, the Editors Guild of India, journalists 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.
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, effectively turning a phone into a pocket spy.