Unhappy with the Centre's reluctance in submitting details of the alleged Pegasus snooping operation in an affidavit, Chief Justice of India (CJI) NV Ramana on Monday, 13 September, told Solicitor General Tushar Mehta, who was appearing for the Union government, that "beating around the bush" will not resolve the issue.
The government on Monday told the Supreme Court it didn't wish to file a detailed affidavit on pleas seeking an independent probe into the alleged Pegasus snooping, citing national security reasons.
The Supreme Court was hearing a number of petitions seeking an independent probe into the alleged Pegasus snooping operations.
A three-member bench, headed by CJI NV Ramana, during a hearing of the case on 7 September, had granted the Union government time to file a further response on the pleas.
The government, however, in the hearing on Monday, expressed its refusal to share the affidavit, and instead prayed that a committee of domain experts should look into the petitions filed.
The Supreme Court reserved its interim orders on the petitions seeking an independent probe.
"We are reserving and will pass an interim order. It might take two to three days to pass the orders," the apex court was quoted as saying by LiveLaw.
What Happened During the Hearing?
Solicitor General Tushar Mehta, appearing for the government, said:
"I am not averse to certain individuals claiming invasion of privacy. This is serious and must be got into. The question is whether it's Pegasus or something else. Our stand is putting this into affidavit will not serve national interest."
"Such issues of whether Centre was using Pegasus or not cannot be debated in affidavits and can be looked into by domain experts... whether it has been done by A software or B Software cannot be said on affidavit," he emphasised, as per a Bar and Bench report.
Instead, the government insisted on being allowed to form a committee of domain experts without its own members.
What the Petitioners Said:
Reacting to SG Mehta, senior advocate Kapil Sibal, representing senior journalists N Ram and Sashi Kumar, said that the union government has a duty to provide facts relating to violation of fundamental rights, adding that a refusal to provide confirmation about whether the government used Pegasus is "detrimental to justice."
He further said that it was "unbelievable" that the government said it would not provide information to the court.
Sibal noted that Germany had admitted to the use of Pegasus, so it cannot be said that the Indian government cannot disclose its own usage or non-usage of the software due to security concerns.
He added that if a committee must be set up, it must be the court, and not the government, which instates it.
Advocate Shyam Divan, appearing for Association of Democratic Rights co-founder Jagdeep Chhokar, alluding to the alleged surveillance, said "This is an assault on democracy."
"There is a serious chilling effect from the use of this kind of spyware, particularly for journalists. Since the government is not denying the use of the spyware against him, the court should order a cease and desist," Advocate Dinesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta, said.
What the Court Said:
CJI Ramana stated that the court would be forced to pass an order in light of the government's disinclination to file an affidavit.
Responding to SG Mehta's request for a committee, Justice NV Ramana said, "No, Mr Mehta, last time we wanted an affidavit and that is why we granted you time and now you are saying this... we are going back again and again... we reiterate... we don't want to know about national security. The issue is... we have citizens saying their phones were tapped," NDTV reported.
Moreover, Justice Surya Kant said, "Last time also... we clarified nobody... is going to intervene in a way that affects national security. There are claims of individual phones being hacked. Which agency has powers (to conduct surveillance on Indians and their phones) and whether it is authorised or not."
Justice Ramana was further quoted as saying, "We had given fair opportunity to Centre to make a statement. Now they don't want to file an affidavit. So, we will pass an order like that... what to do?" Bar and Bench reported.
The court then declared that it would pass an interim order in the next few days.
The Case So Far
The Supreme Court, on 17 August, had issued notice to the union government on the various petitions filed before it regarding the use of the Pegasus spyware against Indian citizens.
Israeli spyware Pegasus is believed to have been used to snoop on at least 300 Indian phone numbers. The names of Rahul Gandhi, Prashant Kishor, Ashok Lavasa, and union ministers Prahlad Patel and Ashwini Vaishnaw, are among those on the leaked list of potential targets, The Wire had reported.
At the hearing on 17 August, the court had asked Solicitor General Tushar Mehta whether the government was willing to file an affidavit clarifying whether it had purchased and used Pegasus or not.
"My submission is that whatever we submitted in the last affidavit covers the case," Mehta had told the court in response.
The union government 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)".
Notably, the affidavit filed by the government did not include a denial of the purchase and/or usage of the spyware in question by the government/government agencies.
Solicitor General Mehta then went on to explain that the government was more comfortable giving a further answer to an expert committee (which could then submit its answer to the apex court), and that it was not willing to provide an answer publicly.
In a subsequent hearing of the case on 7 September, the union government had sought time from the Supreme Court in order to file a further response.
The solicitor general, who had in the previous hearing told the court that the affidavit already filed by the government is “sufficient,” in the 7 September hearing had indicated that a further affidavit might now be filed, even though he “could not ensure the stand” just yet.
(With inputs from Bar and Bench)
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