Arguments to resume on Tuesday- Pegasus: SC seeks fresh affidavit from Centre on spyware scandal

The apex court was also unwilling to accept the central government’s plea for an expert committee probe, members of which it offered to appoint

Supreme Court of India: File picture

R. Balaji   |   TT  |   New Delhi   |   17.08.21: The Supreme Court on Monday suggested the Centre file a fresh affidavit on the Pegasus controversy after the petitioners seeking a probe rejected  the government’s two-page affidavit that denied the allegations of illegal surveillance as “conjectures and surmises”.

The apex court and the batch of petitioners were also unwilling to accept the Centre’s plea for having the allegations probed by an expert committee, whose members the government offered to appoint.

Chief Justice of India N.V. Ramana wondered how such a committee could go into the various constitutional and legal issues the petitioners had raised.

He noted that the petitioners wanted to know whether the Centre had ever bought or used Pegasus and, if not, what steps it had taken to inquire into the allegations of illegal snooping with the Israeli spyware that is sold only to governments and government agencies.

The petitioners underlined that the affidavit had sidestepped these key issues.

“If you (the government) want to file a detailed affidavit, you can take time and do so,” Justice Ramana said.

The bench, which included Justices Surya Kant and Aniruddha Bose, heard the matter for over an hour and posted the next hearing to Tuesday. By then, solicitor-general Tushar Mehta, who appeared for the government, has to specify whether the Centre would file a new and detailed affidavit.

Justice Ramana told senior advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi and others appearing for the batch of petitioners that the court cannot compel the government to file a fresh affidavit but would certainly pass orders on the petitions.

On the proposed expert committee, the Chief Justice said: “There are two issues. Experts can go into the angle of software being used or not. Other issues of permission, procurement has to be examined too. Who will examine?”

Mehta replied that the experts’ body could look into both issues, and suggested the court give the panel the necessary powers and decide its terms of reference.

Justice Ramana replied: “We are not saying anything against the government.... There are areas which the committee can go into while some they can’t.”

The affidavit

An international media investigation has suggested that many Indians, including judges, politicians, rights activists and journalists, were potential or actual targets of Pegasus-enabled snooping. The report has prompted a batch of petitions seeking a Supreme Court-monitored probe.

The Centre’s affidavit, filed through Rajendra Kumar, an additional secretary with the IT ministry, said: “I hereby unequivocally deny any and all of the allegations made against the respondents... (which) are based on conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material. It is submitted that the same cannot be the basis for invoking the writ jurisdiction of this hon'ble court.

“It is submitted that this question stands already clarified on the floor of the Parliament by the hon’ble minister of railways, communications and electronics and information technology of India, Government of India….

“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 into all aspects of the issue.”

Senior advocates Sibal and Dwivedi, representing different petitioners, said there was no question of accepting any inquiry committee whose members had been handpicked by the government.

“The questions raised in all these petitions are against the government. So the government forming a committee will not create any confidence in people,” Dwivedi argued.

Sibal said the Centre had to declare on oath whether it or any of its agencies had used Pegasus. If the government said they had not, the petitioners had different arguments to raise.

Also, he said, the government needed to clarify whether Pegasus had been used on earlier occasions.

He said that when Hyderabad MP Asaduddin Owaisi had raised the issue of Pegasus-enabled snooping in Parliament in 2019, the government had said there were 121 users of the spyware in India.

“This was in 2019. What have they done till then? That’s why they don’t want to respond on facts. This is a serious question, as many people have said their phones were infiltrated,” Sibal said.

He added: “I’m more concerned with institutions. Two institutions that protect democracy are journalism and the judiciary. They have been infiltrated. These institutions cannot be allowed to be infiltrated.”

Divan said: “I have my fundamental rights violated by the State.... It isn’t a matter which should be allowed to be torched by the Union of India by filing this two-page affidavit.”

Justice Bose remarked: “This is your allegation; we don’t have material to support that there’s been violation by the State.”

However, Justice Ramana told Mehta the government must address the concerns raised by the petitioners. The arguments will resume on Tuesday.

Cut and thrust

The proceedings saw some verbal jousting between Mehta and Sibal who represents journalists N. Ram and Shashi Kumar.

Mehta taunted Sibal, reminding him of his tenure as Union IT minister (2011-14) and suggesting that the IT Act 2000 was a “beautiful piece of legislation” except for Section 66A.

This section, introduced by the UPA government in 2008, allowed the police to arrest any netizen for posting content officers deemed “offensive”. State governments were widely accused of abusing the section to target critics, and the apex court struck the section down as “unconstitutional” in 2015.

Sibal responded: “See Mr Mehta, beauty over the years is no longer beautiful. It was beautiful; over the years it lost its beauty, the way you are using it. So let’s not talk about it.”