The Supreme Court on Monday reserved its verdict on a batch of pleas seeking a court-monitored probe in the alleged use of Pegasus, military-grade spyware against a top court judge (since retired) and staff registry, members of the Opposition, journalists, civil rights activists, businessmen among others.
We are not interested in issues pertaining to national security, we are just interested in the allegations of snooping, the top court said while reserving its verdict.
The Bench of Chief Justice of India NV Ramana along with Justices Surya Kant and Hima Kohli indicated that it was inclined to pass interim orders since the Centre refused to file an affidavit on this issue.
Despite getting repeated chances, the Centre had told the Supreme Court that it was not going to file a detailed affidavit in the Pegasus matter. The use of the software, or the lack thereof, cannot be a subject matter of debate in public discourse, Solicitor General Tushar Mehta submitted. We will constitute a committee of domain experts who are unconnected with the government to probe the matter, Mehta added.
"You have repeatedly said that you don't want to put anything in the affidavit. We also don't want security issues to be put here. Presumably, a committee has been formed and then the report will be submitted here. Now we have to look into the whole issue and decide something," CJI Ramana said.
CJI Ramana however gave the Centre an additional two-three days to file something should they wish to while they finalise the order.
A facade has been created that govt is not telling the truth: Centre
The Centre refused to file an affidavit on whether it did or did not use Pegasus, the military-grade spyware by the Israel-based NSO group against its citizens.
Referring to the statement made by the Information and technology minister Ashwani Vaishnaw, Mehta said, "I am not averse to certain individuals claiming invasion of privacy. This is serious and must be looked into. The question is whether it is Pegasus or something. Our stand is putting this into affidavit will not serve the national interest."
Mehta said the petitioners' doubts against the committee of domain experts was unfounded because the committee would not include any person associated with the government, and secondly, the report would directly be submitted to the Supreme Court.
"The insistence that it (alleged use of Pegasus) must come in the public domain has ill effects, Mehta said. If I say I use this technology, the terror groups will be alerted. If I say I don't use this, that too will alert them. Every technology has counter technology that interested groups can use to protect themselves from Central agencies," he added.
"A facade has been created that govt is not telling the truth, but it is not like that," the Solicitor General said. "We are saying let this be gone into since it is about privacy of individuals. We cannot have a committee which cannot withstand judicial scrutiny," he added.
The government wants to hide facts
Senior advocate Kapil Sibal, representing veteran journalist N Ram alleged that the government wanted to hide facts on the Pegasus issue. "When it is about fundamental rights, Centre cannot be an adversary and state has to reveal all the facts and provide all information to petitioner," Sibal said.
"Centre should have taken action against the NSO Group. Have they lodged an FIR? Have they tried to find out the truth? The Centre's emergency response team could have looked into it. It is unbelievable that Centre says 'I will not tell the Court'," Sibal said questioning the government's failure in taking action.
Sibal asked why the government had not investigated a breach of cyber security in accordance with the Information Technology (Indian Computer Emergency Response Team And Manner Of Performing Functions And Duties) Rules, 2013. Has a cyber security audit report been prepared when the Pegasus breach occurred, Sibal asked.
"It is our allegation that government wants to hide facts. Remember the Hawala case, where Supreme Court formed a committee of sitting judges and proceedings were conducted in camera to safeguard national interest issues," Sibal argued contesting the government's committee of domain experts.
"...Pegasus is not only a surveillance mechanism but also a mechanism which can be used to implant false data. This is beyond the scope of the Information and Technology Act or Telegraph Act. If this is happening, the Centre has to be vitally concerned. If it's (surveillance) by the government, then it cannot be done," senior advocate Shyam Divan said echoing Sibal's arguments.
If Pegasus was used by external agencies, then it needs to be probed. The government is bound to protect its citizens. But if the government itself has used Pegasus, then it is an assault on democracy, Divan added.
Senior advocate Dinesh Dwivedi, representing a journalist who was an alleged target of the spyware, claimed that the government's first affidavit was a "non-specific denial". This too has a chilling effect on me, he said.
Dwivedi urged the court to form a committee as opposed to one constituted by the Centre.