The Supreme Court on Tuesday, 17 August, decided to issue notice to the Centre on the petitions filed before it regarding the use of the Pegasus spyware against Indian citizens. The matter will be taken up again after 10 days.
The court has decided it needs to consider the pleas – including by alleged victims of hacking via Pegasus – and has formally asked for a more detailed response from the government and then decide on a course of action (including the Centre's suggestion of having an expert committee respond to the court confidentially).
"This is all before the stage of admission. We had thought a comprehensive reply will come but it was a limited reply. We will see, we will also think and consider what can be done," Chief Justice of India NV Ramana said.
At the hearing, the court had asked Solicitor General Tushar Mehta whether the Centre is willing to file an affidavit clarifying whether it purchased and used Pegasus or not.
"My submission is that whatever we submitted in the last affidavit covers the case," Mehta has told the court.
He then went on to explain that the government was comfortable giving a further answer to an expert committee (which could then submit its answer to the apex court) but would not be willing to give this answer publicly.
The Centre had filed an affidavit in the court on 16 August, which said the pleas before the court are based on "conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material (sic)".
However, the affidavit, like other responses by the Modi government, did not include an express denial that the spyware in question had been acquired and used by the government/government agencies.
'What is Used or Not Used Are Issues of National Security': Solicitor General Tushar Mehta
Defending the need to have interception of communication for national security, Mehta argued that it was not possible to expect a government of a country to say which technologies it was using or not using.
"Those who are likely to be intercepted, may take preemptive or corrective steps. These are issues of national security. What is used or not used are part of national security. We will place everything before the expert committee. But it can’t be the subject matter of an affidavit or public debate."Solicitor General Tushar Mehta
Mehta contended once again that a "narrative" was being weaved about the use of this spyware by a "web portal" (presumably a reference to The Wire's role in reporting the recent Pegasus revelations).
If the government were to give an answer either way, he suggested this could be used by "enemies of India" like terrorists to modulate their communications.
Justice Surya Kant, who is part of the bench along with CJI Ramana and Justice Aniruddha Bose, noted that the claims of snooping made before the court weren't by terrorists or criminals but persons of eminence. While he acknowledged there is a mechanism under law for surveillance and interception, he said this had to be authorised by a competent authority.
"What is the problem if the competent authority files an affidavit before us?" he asked.
The judges reassured the solicitor general that they would not ask the government to divulge national security secrets. Mehta clarified that the Centre was not saying it would not give any answer at all.
"I’m not saying I will not tell anyone, I just wish to not say it publicly," he told the court.
CJI's Request for Clarification on 16 August
After hearing from the petitioners' lawyers on Monday, 16 August, Chief Justice of India NV Ramana observed that the affidavit did not include an answer on this question, and sought clarity from the central government, as this would impact how the case would proceed.
Although he initially said the Union government would not provide such an answer, Mehta later said that the Centre was "not hesitant" to do so. He also queried whether the petitioners would withdraw their cases if such a clarification was provided (presumably if the Centre issues a denial).
The lawyers for the petitioners, including senior advocates Kapil Sibal (for journalists N Ram and Sashi Kumar), Rakesh Dwivedi (for journalists SNM Abdi and Prem Shankar Jha), and Meenakshi Arora (for Rajya Sabha MP John Brittas) had all said they would be fine with the government taking more time to provide a clear and conclusive answer.
Senior advocate Shyam Divan, representing electoral transparency activist Jagdeep Chhokar (who was on the list of potential Pegasus targets), said he would explain why the Supreme Court would still need to hear the matters regardless of the Centre's answer.
As the court was out of time, it decided to take up the matters again on Tuesday. Mehta was asked to obtain instructions from the central government on whether or not it would be willing to clarify its role.
"We cannot compel the government to provide an affidavit," the CJI noted.
'They Have to Say if Pegasus Was Used by Govt': Petitioners' Lawyers Slam Centre's Affidavit
The lawyers for the petitioners had strongly criticised the Centre's affidavit during Monday's, hearing, both for its failure to issue a clear denial and for its suggestion to set up an expert committee to examine the issue.
"This cannot be dodged by the Union government by filing this skimpy two-page affidavit," Shyam Divan contended vehemently.
Meenakshi Arora observed that 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.
"They have to state on oath that government of India or its agencies have never used Pegasus," Kapil 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 their phones were infiltrated," Sibal said to the court.
Rakesh Dwivedi 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.
The bench also questioned how the government's suggestion of an expert committee could answer whether or not the Centre had deployed Pegasus against Indian citizens.
The Solicitor General insisted this could be done, even as he said the allegations about Pegasus snooping were an attempt to "sensationalise" and were part of a "false narrative". He also suggested that there were national security issues at play.
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