Pegasus Spyware Probe #2: Union Unwilling To Disclose Information Publicly Or To Expert Committee

August 17th 2021

A bench comprising CJI Ramana, J Surya Kant and J Aniruddha Bose heard the petitions related to the use of Pegasus spyware on August 17th, 2021.

The petitioners allege that the data on their mobile phones had been intercepted using Pegasus spyware. The developers of Pegasus claim that they only sell their programme to governments. The petitioners seek a judicial investigation to determine if the Union used Pegasus spyware to intercept their private communication.

Union Cites National Security, Information Should Not be Disclosed in Public Domain

Solicitor General Tushar Mehta stated that the affidavit submitted by the Government in the previous hearing (August 16th) sufficiently covers all questions the Government is obliged to answer. He argued that the Government is permitted by law to intercept communication for national security purposes.

He further stated that the issue was not whether the Government was authorised to intercept, but what software was used. Mr. Mehta emphasised that no government would divulge this information publicly. This information would enable ‘enemies of the nation’ to tweak their communication systems and allow them to evade Government interception.

Surya Kant J stated that the Court was also ‘reluctant’ to ask for information that might threaten national security. However, in this case, civilians had alleged that their Whatsapp conversations had been intercepted using Pegasus. He enquired why the Union could not file an affidavit stating if it had used Pegasus. The Court allowed the relevant officers to decide what information to disclose.

Union Willing to Disclose Information to Expert Committee

Mr. Mehta clarified that the Government had no objection to divulging information about the alleged interception. The Court would receive all relevant details – the only question is if these details should be released to the general public; he suggested that sensitive information cannot be given to the Court on affidavit.

Mr. Mehta stated that the Government is not duty bound to offer more information. However, as a ‘responsible government’, they are suggesting the formation of a Court-monitored expert committee. The Government will divulge all information to this Committee who may then present it to the Court.

Sr. Adv. Sibal on behalf of journalists N. Ram and Sashi Kumar stated that the petitioners were not seeking sensitive information affecting national security. They only wanted to know if Pegasus had been used.

Court Issues Notice to Government; Will Deliberate Next Steps

CJI Ramana stated that the Court had expected a comprehensive response from the Government, but had received only a limited one.

The Court has not yet admitted the case. However, it issued notice and gave the government a chance to respond to the petitioners’ allegations. Also, the Court will deliberate on the need for an expert committee, and other possible options.

The matter will be heard after 10 days, on August 27th, 2021.