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In a batch of pleas seeking Court monitored probe into the Pegasus Controversy, Supreme Court said that it will continue the hearing tomorrow.

Centre is expected to tell Court whether it will file an additional affidavit in the matter or not.

The Centre maintained throughout the hearing that the reply on whether any kind of illegal snooping was done or not was already given to the Parliament and that in light of checks and balances that exist, it was not possible to do any surveillance which did not have national security reasons. 

Petitioners, on the other hand submitted that since the Centre has made no categorical statements, they must come ahead and take charge by either accepting or denying on the use of Pegasus. “Our arguments will be based on what they say, as to whether pegasus was used or not,” says Kapil Sibal (appearing for The Hindu’s N. Ram).

A Full bench of Chief Justice NV Ramana, Justice Surya Kant and Justice Aniruddha Bose, while hearing the matter today, said to the Ld. SGI Mr. Mehta,

"We cannot compel the centre to file another affidavit. The limited affidavit filed by you does not satisfy the petitioners and they say that they are unable to go ahead with arguments unless you revert on their averments. You can go ahead and file a detailed affidavit and take some time to do so."

Ld. SGI Tushar Mehta at the outset, informed the Court about the Centre's Affidavit, which denies all allegations stating that the petitions are based on "conjectures and surmises or on other unsubstantiated media reports or uncorroborated material."

"In order to dispel false narratives by certain vested interests Union of India will constitute a Committee of Experts, which will go into all aspects of the issue," affidavit by the Centre adds.

"There is nothing to hide, nonetheless, its a technical issue. We will form a neutral committee and place whatever experts find before the Court. I don't think Government of India can be more transparent than this," submitted Ld. SGI Mr. Mehta.

Ld. SGI further referred parliamentary discussion on the Pegasus issue which says that there is a Protocol when it comes to surveillance - which is not possible with level of checks and balances - that it can only be used for National Security purposes, in line with Statutes in place.

"Truth is if we say that Pegasus was never used - will they withdraw their petitions? Answer is no. This is why we say Committee needs to come in - If it is only for sensationalizing and that's the objective, I can’t help it,” he added.

"The Experts can look into the technical aspects, but sanctions and procurement has to be examined by somebody," the Court said.

Ld. SGI suggested that the Court by using it's powers under Article 32 can confer the Expert Committee with the jurisdiction to look into both - the technical aspects and the sanctions - terms of reference can be laid down and the Govt. appointed committee should be trusted, added the SGI opposing Ld. Senior Advocate Rakesh Dwivedi's submission on Court appointing the Committee members.

Responding to the Affidavit, Ld. Senior Counsel Kapil Sibal submitted that the Centre should respond on facts - They should categorically accept or deny the allegations made;

"Whether the Pegasus was used by Government of India or any other agency, is a question which they will have to address - They will either have to deny or agree to it"

Reference was further made to Section 70B of the IT Act, 2000 - Functions of Indian Computer Emergency Response Team (CERT-in) - to submit on report by CERT-in which had taken note of some sypware intruding WhatsApp.

"It was developed by NSO to target 1400 users globally and 21 users in India. So now, how can they say they deny it now? What steps have they taken since 2019?," asked Mr. Sibal.

Referring IT Rules, 2009 - Ld. Senior Counsel raised the issue of "Competent Authority" 

"This Affidavit by the Union is filed by Additional Secretary Ministry of Electronics and IT - The Competent Authority in the present case shall be Secretary, Home Affairs Department."

Senior Counsel Rakesh Dwivedi submitted that there is nothing in the statement by Hon'ble Minister (Union's Affidavit) which goes on to prove that the Government has not used Pegasus or is not using it. 

"This use of Pegasus has to be authorized by some legislation (Puttaswamy judgment) - Nothing in this short affidavit reflects which provision of law permits the Govt. to use this Software. They have not accepted or denied the use of it infact."

With respect to the Committee proposed by Centre, Senior Counsel Mr. Dwivedi suggested to record names in the order and monitor the same, so to maintain transparency and neutrality.

"Delightfully non-committal," submitted Senior Counsel Ms. Meenakshi Arora on Centre's Affidavit.

Earlier Developments

On the last date of hearing, CJI NV Ramana, while hearing the matter said,

“Any of these people who are interested in matters and are saying things in the media — we hope you will answer within Court. If you don’t have faith, it is another thing. You must have faith in system. Expressing opinions on Twitter and all, what is this... I hope the petitioners are able to answer us in the four walls of the Court halls, everyone will face the music."

CJI also expressed displeasure at expression of opinions in a case which is sub-judice by petitioner(s).

Background

Earlier, the Court, though not completely denying merits of the petition, asked why no FIRs were registered in the matter when it first emerged in 2019.

A Division Bench of Chief Justice NV Ramana and Justice Surya Kant, previously said,

“We want to ask certain questions, except the Editors guild petition – You all know that there is admissible material, verified material on which we can entertain WPs. May 2019 this came into light. I do not know why, any serious concern regarding this issue was not raised then. Suddenly we have these petitions. People who have filed these WPs are reputed people, they should have done more focussed effort to put more material, at the same time we cannot say there is no material as there are reports on it. Another angle is, some of the people have not gone into individual cases, they have come up for their cases in these PILs – you know there are provisions under the IT Act, Telegraph Act. Why are no complaints lodged under it?"

Comprehensive submissions were made by Senior Advocate Kapil Sibal for N. Ram, Ms. Meenakshi Arora for CPI (M) leader John Brittas, Senior Adv. Shyam Divan for Jagdeep Chokkar, Mr. Datar for 2 Journalists in a connected matter.

“It infiltrates into our lives without our knowing and it hears, watches every moment. It causes assault on privacy and dignity and penetrates into backbone of the Internet," submitted Kapil Sibal.

Court asked that alleged snooping have been reported for Indian Journalists also, alleges N. Ram’s petition as per the Californian Court’s Observation – “where can that be found in the California Court’s judgement?”

Learned Senior Counsel Meenakshi Arora for CPI (M) leader John Brittas, submitted, “It is a categorical statement made by NSO that only sovereign entity can take this software”

Senior Advocate Shyam Divan appearing for Jagdeep Chokkar, submitted,

“These are not just media reports being made here and there – Two National Governments have taken action – The USA and France have taken action on the basis of these reports. So these are media reports which enjoy a very very high degree of credibility.”

“We seek a response from the Government as an interim relief and a deeper investigation into the issue. It is necessary for the Cabinet Secretary to make affidavits in the present case,” added Mr. Divan.

Senior Advocate Rakesh Dwivedi appeared for a connected matter, submitted that, this is a matter in huge dimension, 

“This is not a case of a single person’s privacy being barged into – If a foreign entity is involved, the Government of India should have responded or taken action on its own. The whole country should be ensured that their internets will not be compromised like this. This involves Constitutionality also, not just Criminality.”

Senior Advocate, Arvind P Datar appearing for 2 Journalists, submitted on statutory provisions for individual reliefs and added on contours of Right to Privacy as enunciated by the Puttaswamy judgment.

A batch of petitions have been filed seeking similar relief in the present matter, by Adv. ML Sharma, CPI MP John Brittas, N Ram of The Hindu, Jagdeep Chokkar, Narendra Mishra, Rupesh Kumar Singh, Paranjoy Guha Thakurta, SNM Abdi and the Editors Guild of India.

On 19th July 2021, a consortium of 17 international media organizations including an Indian news portal published an investigation around a leaked list of phone numbers from across the world, named the Pegasus Project.

These numbers in the leaked list are allegedly the “target list” of phones hacked /to be hacked by the Pegasus spyware product sold by Israel’s NSO Group.

The target list said to contain the numbers of 136 prominent politicians, judges, journalists, businessmen, rights activists etc.

NSO Group, who owns ‘Pegasus Spyware’, was sued by WhatsApp and Facebook in 2019 before the US Californian Court for exploiting its platform to carry out remote surveillances. NSO claimed sovereign immunity as its products were sold only to governments and state agencies. However, The Californian Court ruled in favour of WhatsApp and dismissed NSO’s claim.

Also Read: 5 alleged victims of Pegasus move Supreme Court to declare the software’s usage Unconstitutional

Also Read: [Pegasus Controversy] DMK MP Thirumavalavan seeks AG KK Venugopal’s consent to initiate contempt case against NSO Group, Cabinet Secretary and Home Secretary

Case Title: ML Sharma v. PM Narendra Modi | N. Ram & Ors v. UOI | John Brittas v. UOI | Editors Guild of India v. UOI | Yashwant Singh v. UOI