A Supreme Court bench of Chief Justice of India NV Ramana and Justices Surya Kant and Aniruddha Bose on Monday, 16 August, asked the Centre if it would file an affidavit clarifying whether or not it had purchased and used Pegasus spyware on Indian citizens.
Solicitor General Tushar Mehta told the court that the Centre "denies all the allegations in the petitions", which include pleas by individuals who have been reportedly affected by the spyware, as well as PILs by journalists, activists and parliamentarians.
However, the Centre has not yet agreed to provide an express clarification on the purchase and use of the spyware.
The Centre on Monday, 16 August, filed an affidavit in the apex court arguing that the petitions are based on "conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material (sic)".
The Centre has also claimed that the Union Minister for Electronics and IT Ashwini Vaishnaw has already clarified the issue in Parliament. On 19 July, Vaishnaw had said the reports about use of Pegasus on Indian citizens were an attempt to malign India’s “democracy and its well-established institutions”.
Nonetheless, the Centre informed the court that it will set up a committee to examine the issue.
"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."Affidavit filed by Centre in Supreme Court
Following arguments by the petitioners' lawyers on how the affidavit was unsatisfactory, the judges decided to take up the matter again on Tuesday, 17 August.
The Centre has been asked to decide whether or not it wants to provide a new affidavit clarifying whether or not the government used the spyware by then.
'They Have to Say if Pegasus Was Used by Govt': Petitioners' Lawyers Slam Centre's Affidavit
Senior advocate Kapil Sibal, representing journalists N Ram and Sashi Kumar, argued that the Centre's affidavit "does not answer any of our questions."
He noted that the affidavit at the start says that because of paucity of time, the Centre had not been able to deal with all factual contentions raised in the petitions – and so questioned how the government could then say that the petitions are based on conjectures.
"They have to state on oath that government of India or its agencies have never used Pegasus," Sibal said. "We don't want the government which may have used Pegasus to set up a committee, where does the question of a committee come in. They should be given enough time to file facts on affidavit."
Sibal also pointed out that in a 2019 response in Parliament, as mentioned at the first hearing in the matter, the Centre had acknowledged the allegations about Pegasus hacking, including that 121 Indian citizens had been targeted.
"This was in 2019. What have they done till then? Have they investigated the matter? Have they taken any action. That's why they don’t want to respond on facts. This is a serious question, as many have said there phones were infiltrated," Sibal said to the court.
He also argued that two institutions "which protect democracy", the judiciary and journalism, had been targeted, referring to allegations that Supreme Court registrars and the former court officer who had made sexual harassment allegations against former CJI Ranjan Gogoi, had been snooped on.
Sibal argued that the affidavit from the Union Government should have been filed by the Home Secretary, as according to rules on interception and decryption, this is the official who would have the relevant information.
He also reiterated that the French government and the Israeli government had launched inquiries into the Pegasus allegations based on the media reports.
Senior advocate Rakesh Dwivedi, representing journalists Prem Shankar Jha and SNM Abdi, told the court that forensic analysis of his clients' phones showed they had been compromised with Pegasus.
He also pointed out that the affidavit does not actually state that the government had not purchased or used Pegasus.
Dwivedi then argued that the "government creating its own committee will not create confidence in public at large and petitioners in particular." He said that if a committee was to be appointed, it should be an independent one under the supervision of the Supreme Court.
Senior advocate Shyam Divan, representing electoral reforms activist Jagdeep Chhokar (also allegedly targeted by the spyware) also argued that the government's idea of an expert committee wasn't enough. "This cannot be dodged by the Union Government by filing this skimpy two page affidavit," Divan contended vehemently.
Senior advocate Meenakshi Arora said the affidavit was "delightfully non-committal" and that it did not deny the use of the spyware. She also noted that other countries had taken cognisance of the matter as an infringement of privacy.
'Attempt Being Made to Sensationalise': Solicitor General Tushar Mehta
After hearing from the petitioners' lawyers, the CJI told Solicitor General Tushar Mehta that "The sum and substance is this, that the affidavit filed by you is not satisfactory, it's not mentioned if government used Pegasus. Unless and until you do, the matter can't move forward."
The government law officer argued that the issue was sensitive and that attempts were made to sensationalise it. He proceeded to take the court in detail through the answer given by Union Minister Ashwini Vaishnaw in Parliament, and noted that there were issues of national security involved.
The bench once again pressed the Solicitor General on whether the government would state on affidavit if it had purchased and used Pegasus as this would offer clarity. However, Mehta initially suggested this would not be possible:
"If they want a one page affidavit saying Pegasus was used or not used, then the answer is no."
Mehta later asked if the petitioners would be willing to withdraw their petitions if the government were to deny using Pegasus, terming the allegations a "false narrative" spread by a "web portal".
He insisted that the way to proceed was to appoint an expert committee which could examine whether or not the spyware had been used. The CJI asked how the expert committee could assess whether or not the government had procured and used Pegasus as only the government could answer the question, but Mehta claimed the court could give it the power to do so.
The Solicitor General said the Centre was not "reluctant to file another affidavit" but refused to commit to doing so. "Even if we provide the answer the matter will continue," he complained.
What do These Petitions in the Supreme Court Argue?
The list of cases that being heard by the apex court include:
Public Interest Litigations (PILs) filed by advocate ML Sharma, journalists N Ram and Sashi Kumar, Rajya Sabha MP John Brittas, and the Editors Guild of India;
Writ petitions filed by people whose names feature on the list of potential Pegasus snooping targets, including journalists Paranjoy Guha Thakurta, SNM Abdi, and Rupesh Kumar Singh, as well as electoral reforms activist Jagdeep Chhokar.
The key arguments across the petitions filed in the apex court are that the use of a spyware tool like Pegasus violates the targets' fundamental right to privacy, and cannot be justified as lawful surveillance – instead, it amounts to illegal hacking of the victims' devices.
The writ petitions filed by the alleged victims of Pegasus snooping (with forensic analysis confirmation for Guha Thakurta and Abdi) argue that the use of Pegasus against them was "state-sponsored illegal hacking".
The involvement of the government is presumed by them on the basis of the Centre's failure to deny purchasing and using the spyware, as well as manufacturer NSO Group's insistence that they only sell their technology to governments and state agencies.
In addition to the core arguments on privacy and surveillance, the Writ Petitions and the PILs filed by journalists also specifically argue the impact that this usage of surveillance has on freedom of the press.
The PILs almost uniformly seek some sort of judicially monitored probe into the allegations that Pegasus was used against Indian citizens, whether an SIT or an inquiry by a sitting/retired judge of the apex court.
Another consistent demand across the PILs and writ petitions is for the Centre to disclose conclusively whether it has acquired and used Pegasus and other similar spyware against Indian citizens.
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