The Supreme Court today reserved interim orders in the petitions seeking various prayers including directions to the government to reveal whether it had used the Pegasus software to spy on citizens.
The Bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli passed the order today in view of the Centre’s reluctance to disclose details on the use of Pegasus and other surveillance software on affidavit before the Court.
Addressing Solicitor General Tushar Mehta, who appeared for the Central government, the Court said,
“You have repeatedly said that you don’t want to put anything in affidavit. We also don’t want security issues to be put here. Presumably, a committee has been formed and then the report will be submitted here. Now we have to look into whole issue and decide something.”
SG Mehta had submitted during today’s hearing that the question of whether the Central government used Pegasus or any other surveillance software cannot be debated in affidavits filed before the Court.
SG Mehta had cited protection of national security as a ground to justify the Centre’s reluctance to do so. In response, the Court had said,
“We are not interested to know about national interest issues, but we are only on the face of allegations that some software was used to snoop certain citizens like lawyers etc. We wanted to know if it’s done to see if it’s permissible under law.”
He also prayed that the government be allowed to form a committee of expert to look into the security breaches alleged by the petitioners.
Appearing for the petitioners, Senior Advocate Kapil Sibal cited various judgments to contend,
“When it is about fundamental rights, Centre cannot be an adversary and state has to reveal all the facts and provide all information to petitioner.”
He further questioned the Centre’s failure to file an FIR in the cases of privacy breaches.
“Centre should have taken action against NSO and Pegasus. Have they lodged an FIR? Have they tried to find out the truth? Central emergency response team could have looked into it. It is unbelievable that Centre says ‘I will not tell the Court’.”
He went on to refer to the Information Technology (Indian Computer Emergency Response Team And Manner Of Performing Functions And Duties) Rules, 2013, under which a Computer Emergency Response Team (CERT-In) is required to investigate and prevent instances of cyber security breaches. He questioned whether a cyber security audit report was prepared when the Pegasus breach occurred.
“It is our allegation that government wants to hide facts. Remember the Hawala case, where Supreme Court formed a committee of sitting judges and proceedings were conducted in chambers to safeguard national interest issues,” Sibal went on to argue, contesting the request to form a committee to look into the issue.
Appearing for another petitioner, Senior Advocate Shyam Divan placed on record that four affidavits were filed in the matter by different experts. Referring to one of these affidavits, he said,
“…Pegasus is not only surveillance mechanism, but also an implant mechanism which can be used to implant false data. This is beyond IT Act or Telegraph Act. If this is happening, Centre has to be vitally concerned. If it’s (surveillance) by the government, then it cannot be done.”
He thus prayed for a direction to the Cabinet Secretary to file an affidavit in the matter.
Senior Advocate Rakesh Dwivedi, arguing for another petitioner, pointed out the non-specific denials being made by the Centre in the matter.
“It is said that the defendant must deal with each allegation which he specifically denies the truth of. If not done, then it shall be taken to be admitted as against the defendant…If Centre does not want to file an affidavit then there would be a presumption that prima facie our submissions are correct.”
He urged the Court to form a committee, as opposed to the government doing so.
Senior Advocate Meenakshi Arora called for the formation of a Special Investigation Team headed by a retired Supreme Court judge to look into the issues.
The Centre has been engaging in widespread surveillance for a long, long time, Senior Advocate Colin Gonsalves said, appearing for a journalist who was a victim of the Pegasus attack.
When the Court asked SG Mehta to “think over and argue”, he said,
“My case is simple. There is a statutory regime is in place. Interception is itself not in doubt. Every technology has its own side-effects or ill-effects. We are saying let all these technical issues be gone into by domain experts.”
He went on to state,
“A facade has been created that government is not telling the truth, but its not like that…we are saying let this be gone into since its about privacy of individuals. We cannot have a committee which cannot withstand judicial scrutiny.”
The Court ultimately said,
“We reserve orders. This is for interim orders. You have two-three days, Mr Mehta. If you have any rethinking, you can mention before this Court.”
