Pegasus Spyware Probe #5: Union Refuses To Reveal Information About Pegasus And SC Reserves Order

September 13th 2021

A bench comprising Ramana CJI, Surya Kant J and Hima Kohli J heard the petitions related to the use of Pegasus spyware on September 13th, 2021.

The petitioners allege that 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.

Government Refuses to File a More Detailed Affidavit; Will Not Reveal Information about Pegasus on Public Record

Solicitor General Tushar Mehta stated that the Government was not duty bound to disclose further information on affidavit. He argued that the petitioners sought details of the specific software used legally for interception by the Government. He repeated that this information would be harmful to national security. It would enable targeted terror groups to take countermeasures to escape interception. He restated the Government’s suggestion of setting up an independent committee of experts to enquire into the matter outside the public domain.

Kant J stated that on an earlier date, the Court had clarified that it would not compel disclosure of any details affecting national security. Ramana CJI emphasised that the Court was only interested in knowing if any illegal methods of interception had been used by the Government.

Mr. Mehta read out portions of IT Minister Ashwini Vaishnaw’s statement in Parliament. Mr. Mehta pointed out the sensationalised nature of the Pegasus press coverage. He also argued that the existing facts do not lead to the definite conclusion that the phones were tapped.

Ramana CJI asked Mr. Mehta to consider that an affidavit from the Government would allow the Court to decide where it stands on vital issues.

Petitioners Argue that Government is Duty Bound to Give Detailed Answers

CJI Ramana stated that in the absence of more information from the Government, the Court was considering passing interim orders. He asked the petitioners to make arguments on this point.

Senior Advocate Kapil Sibal, appearing for journalist N Ram, referred to the Court’s decision in Ram Jethmalani v Union of India (2011). He argued that in matters involving fundamental rights, the Government should not view itself as the adversary of the petitioner. He highlighted that the State has as much of a duty as the petitioners to put information before the Court in such cases. Mr. Sibal argued that withholding information will infringe upon the constitutional rights of the petitioners under Articles 19 and 32. He further stated that the Government was evading its duty to protect the privacy of the petitioners by refusing to disclose information.

Mr. Dinesh Dwivedi added that the interception had a ‘chilling effect’ on the freedom of speech and expression because

Mr. Sibal also stated that the Government had already admitted that they knew Pegasus was being used in 2019. He submitted that Whatsapp had notified a privacy vulnerability to the IT Ministry in 2019. The IT Ministry was duty bound to investigate this complaint. Mr. Sibal asked what action had been taken by the IT Ministry since 2019.

Similarly, Senior Advocate Shyam Divan argued that while statements from the IT Minister are adequate in Parliament, they do not fulfill the requirements of the Court’s rules on how pleadings should be made. In Court, an affidavit is required.

Mr. Divan further placed emphasis on affidavits filed by two IT experts who had studied Pegasus. He argued that Pegasus allowed the interceptor to access all the data on the user’s phone, including private messages and messages. He also pointed out that it was not merely an interception software- it could also be used to plant data on the user’s phone. Hence, he stated that it was imperative for the Government to disclose if it had used Pegasus, because nothing in the IT Act allowed for the use of such software.

Accordingly, the petitioners prayed for an interim order directing the Government to file a detailed affidavit, specifically stating if it had used Pegasus. Mr. Divan argued that the affidavit should only be filed by the Cabinet Secretary since the Secretary’s position within the Cabinet made them privy to the activities of all ministries.

Senior Advocate Dinesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta, stated that the defendant must make specific denials which are not evasive. As per the Code for Civil Procedure, 1908. Anything not specifically denied can be construed as true by the Court.

Petitioners and Government Disagree Over Who Should Investigate the Interception 

Mr. Mehta’s suggestion of allowing the Government to set up a committee of independent experts was met with strong disagreement from the petitioners.

Mr. Sibal argued that the committee should be completely outside of the Government’s control. He suggested using the Hawala case as an example. Here, a committee of sitting judges heard the case in-camera to ensure no sensitive information was debated in the public domain.

Mr. Rakesh Dwivedi, representing journalist S.N.M. Abidi, stated that a committee set up by the government to investigate an allegation made against itself would have no credibility. Causing petitioners to surrender their phones for a secretive investigation to this committee would not inspire the confidence of citizens.

Senior Advocate Meenakshi Arora, appearing for MP John Brittas, suggested the formation of a Special Investigation Team headed by a retired judge for this investigation.

Senior Advocate Colin Gonsalves, appearing for Degree Prasad Chouhan and SFLC, relied on news and academic reports alleging widespread illegal surveillance by the Government. He used these reports to argue that the Government could not be trusted to set up the investigation committee.

SG Mehta argued that there was a marginal difference between protecting the rights of citizens and compromising national security. He took issue with the petitioners’ characterisation that the Government was trying to hide something. He said that the Government’s willingness to submit to an expert committee proved their commitment to justice. The committee would be answerable to the Court, but placing all information directly on public record would be harmful.

The Court reserved interim orders. It will pass these orders in 2-3 days. Meanwhile, it granted Mr. Mehta permission to approach the Court if the Government decides to file an affidavit.