Pegasus: Indian SC reserves order on petitions seeking probe into alleged surveillance

The Indian Supreme Court on Monday reserved its order on a clutch of petitions that have demanded a court-monitored investigation into use of Pegasus spyware for the alleged surveillance of citizens after the Union government declined to make public whether its agencies used the Israeli software.

A bench, headed by Chief Justice of India NV Ramana, reserved its order after an 80-minute hearing during which the government refused to share any more information on use of Pegasus by its agencies or hand out specific information on alleged interception of some of the petitioners.

The bench, which included justices Surya Kant and Hima Kohli, said the court will pass an interim order in the next 3-4 days on constitution of an expert committee and on other ancillary issues related to an independent inquiry after considering the materials placed by the petitioners before it and the submissions made by the counsel for the parties.

After taking time on Tuesday last week to reconsider its previous stand against filing a detailed response on the bunch of petitions, solicitor general Tushar Mehta reiterated on Monday that use of a particular software like Pegasus cannot be a subject matter of any affidavit or a public debate.

While the government is open to have a committee of independent domain experts who can go into all aspects of the controversy and submit its report before the bench, Mehta emphasised, use of a particular software "cannot be made a part of the public discourse in the larger national interest and in the interest of the security of the nation."

The law officer said the government stands by its August 16 affidavit filed on the Pegasus snooping matter. This affidavit neither confirmed nor denied the use of the military-grade spyware to hack phones of ministers, politicians, businessmen, activists and journalists and offered to instead set up an expert committee.

But the bench said, "We said it very clearly even on the last date that nobody is interested in disclosure of information that could compromise with national security. We wanted a limited affidavit from you because we have petitioners before us, citing violation of their privacy...In the face of the allegations that some software was used to snoop certain individuals like lawyers and journalists, it had to be made known whether there are methods of interception other than lawful means."

Mehta, on his part, maintained that a facade is sought to be created that the government is hiding the truth whereas its stand is clear that it is not evading any inquiry but is rather willing to have it done on its own through a committee of independent experts.

This submission was strongly objected to by petitioners' lawyers, which included senior counsel Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Colin Gonsalves and Meenakshi Arora. All these lawyers condemned the Centre's refusal to come clean on use of Pegasus while also urging the court to reject the government's proposal to form a committee by itself.

Sibal referred to a statement made by Ravi Shankar Prasad, then Union law minister, in Parliament in response to a question by AIMIM chief and lawmaker Asaduddin Owaisi. Prasad admitted that WhatsApp had notified the government about attempts to hack phones of more than 100 users in India. Sibal said that the government is impeding the course of justice by keeping relevant information hidden from the highest court of the land and it indicates that the government has been using Pegasus against the citizens without any sanction of law.

Most of the senior lawyers pointed out that the government, being the "wrongdoer", cannot be allowed to have a committee by itself and that the court should set up a panel of members of its own choice to go into the issue and report back.

While Divan pressed for a directive to the cabinet secretary to file a "disclosure affidavit", Dinesh Dwivedi asked for an interim order to restrain the government from using Pegasus against anyone.

Mehta, at this point, reiterated that the court should allow the government to set up a committee, which, he said, will have experts completely unconnected with the government.

"Suppose a committee examines it and places its report before us, then also everything will come into public domain...but ultimately it is your prerogative and you have decided not to file anything. We will now pass an interim order what we have to pass," replied the bench, reserving its order.

The Pegasus row erupted on July 18 after an international investigative consortium reported that the phones of Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 that were potentially targeted by Pegasus, Israeli company NSO Group's phone hacking software. According to this consortium, Pegasus can switch on a target's phone camera and microphone, as well as access data on the device, effectively turning a phone into a pocket spy.

Responding to a bunch of petitions filed by lawyers, politicians, journalists and civil rights activists, the Union ministry of electronics and information technology filed a three-page affidavit on August 16 that refused to confirm or deny whether it used Pegasus spyware for surveilling Indians. The Centre instead offered to set up an expert committee to look into the controversy and "dispel any wrong narrative spread by certain vested interests".

On August 17, the court observed that it is "not averse" to setting up an expert committee to look into the alleged surveillance of Indian citizens with Pegasus spyware but expects the government to bring sufficient facts on record regarding the interception regime in India.

The government, however, said that all interceptions were being done in accordance with the statutory procedure, and it would not wish to put out in the public domain details of the software used for lawful surveillance by filing any additional affidavit.

Following the Centre's refusal, the court on 17 August issued a formal notice to the government on the batch of pleas filed by petitioners in the case, a list that includes advocate ML Sharma, former minister Yashwant Sinha, Rajya Sabha MP John Brittas, the Editors Guild of India, journalists N Ram and Sashi Kumar, journalists Paranjoy Guha Thakurta, Rupesh Kumar Singh, Ipshita Shatakshi, SNM Abdi, and Prem Shankar Jha, and civil rights activists Jagdeep S Chhokar and Narendra Mishra.

Deferring the matter for 17 August, the bench once again asked SG Mehta to consider filing a detailed reply while observing that the court would ponder over the future course of action in the meantime. On September 7, the S-G asked for some time to reconsider its earlier stand, following which the matter was fixed for a hearing on Monday.