The Supreme Court observed that even though the allegations pertaining to the use of the Pegasus spyware were serious in nature, no attempts have been made by any of the affected persons to file a criminal complaint before coming to court.
The bench led by Chief Justice of India NV Ramana and Justice Surya Kant heard all nine pleas in detail and directed the petitioners to forward the same to the government counsels ahead of the next hearing on Tuesday. The top court did not issue notice since no counsel representing the Centre was present in court.
If the phone is hacked, why no criminal complaint filed? SC
CJI Ramana observed that there was no doubt the allegations were serious if the media reports were true. However, most of the petitions had relied on foreign newspapers to make their point, he added. "Any verifiable material for us to order an inquiry?" CJI Ramana asked.
CJI NV Ramana observed that the matter had first come up in 2019, but at the time, no serious concerns were raised. Why the delay? The top judge asked all petitioners.
"If you know your phone is hacked, then why no criminal complaint was filed? We are not saying petitions are based on hearsay and we cannot say there is no material, but people who should have filed the writs are more knowledgeable and resourceful. They should have put more hard work to put more material," CJI Ramana remarked.
"We have no direct access to information," senior advocate Kapil Sibal said. "We only got to know from Washington Post and other media agencies. The extent of surveillance was not known to us. How do we file this petition?" said Sibal while representing veteran journalist N Ram.
Certain names of potential targets, including a former Supreme Court judge was revealed just yesterday, Sibal said.
"Today morning we found out that even Registrars of this Court have their numbers in the snooping list. Their phones were also accessed. Some members of the judiciary were also named," Sibal added
Even though the Pegasus issue first broke out in 2019, the names of those who were potential targets for hacking came to be known in July 2019, senior advocate CU Singh said referring to the Pegasus Project which involved a two-year investigation conducted by Amnesty International's cybersecurity team.
"This case requires an independent probe by a fact-finding committee. It has to be a highest-level bureaucrat who replies to this, preferably the Cabinet Secretary," senior advocate Shyam Divan said, representing academician Jagdeep Chokkar.
No provision under which to file a complaint against breach of privacy: Journalists
Senior advocate Arvind Datar said he represented two journalists who were potential targets for surveillance. Responding to the query of why no FIR was filed, he said that provisions of the Information and Technology Act, 2000 allow the filing of a suit for damages.
"We know Pegasus has been used. Now we don't know who has used it and when. We don't know. The remedy is to seek damages, but we need to know who did it," he added.
In today's laws, privacy is about the privacy of one's bodily area only. There is no law that allows the filing of a criminal case against the breach of one's privacy, Datar added. When the law was made, Datar said, there was no contemplation that all the information was accessible by a missed call.
"Section 66A (of the IT Act) can be applied," CJI Ramana said. To which, Datar said that the same was struck down. In 2016, the SC in the Shreya Singhal judgment struck down section 66A as unconstitutional.
Datar then submitted that many people were affected by the Pegasus hack and the matter should be taken up as a class action case. "Today, 300 people have come to light. We don't know it's 300 or 3,000 individuals. Who else will take cognizance of this apart from the judiciary?" Datar argued.
Rogue technology which penetrates the national internet backbone: N Ram to SC
Sibal said the Pegasus spyware was a "rogue technology and infiltrates our life without our knowledge". The spyware penetrates "our national internet backbone" and is an assault on privacy, human dignity and the values of our human republic, he added.
"No one can dispute that Pegasus infiltrates. This spyware cannot be used in India unless you purchase it. The question is: Has it been used in India?" Sibal asked.
Reading out a statement issued by the NGO group which said that the spyware was sold to vetted governments only to combat terrorism, Sibal asked whether scientists, lawyers, journalists, court staff are all terrorists too?
Referring to the Facebook-owned WhatsApp's suit against NSO in a California court, Sibal said the judge there had held that the surveillance using Pegasus was done at the behest of the government. To which, Justice Kant said, "What happened in the California matter? The government had claimed sovereign immunity there".
"The immunity application was rejected by the court," Sibal replied adding that the matter is still pending in court.
Sibal said we must ask the government whether it bought the spyware. If yes, then where is the hardware? Was it used to target journalists, politicians, and Constitutional functionaries?
The government acknowledged this is happening in November 2019, Sibal said. "Then why hasn't any action been taken?" he added.
CJI Ramana then suggested that when NSO group said it was selling to vetted governments only, could this also mean state governments.
"The Government of India needs to answer on that front. It is not an internal matter. We cannot give all answers as we don't have access, only the government has. They have to state why they did not take any action," Sibal replied.
Representing another petitioner, senior advocate Rakesh Dwivedi said that the issue here was not merely of criminality, but also of the constitutionality of Pegasus.
"I can understand tapping phones of terrorists. But ordinary people's phones cannot be compromised. The question of whether the Centre used Pegasus needs to be answered. The Centre should have replied on its own," Dwivedi submitted.
Updated On: 2021-08-05T20:44:45+05:30