This report is extracted from the live twitter reporting by Live Law. I am thankful to them.
Around 1200 hrs noon time on 13 Sept 2021, the #Supreme #Court of India starts hearing the Pegasus cases. (second Sitting)
Solicitor General Tushar Mehta : The position is like this. There are petitions seeking inquiry. I have already filed an affidavit that as per the statutory regime in India, namely IT Act and Telegraph Act in general. Sec 69 IT Act in particular, there has been no unauthorized interception. Centre has informed this to Parliament. Nonetheless, the issue is important. So we have expressed our willingness to constitute a committee.
CJI : No Mr. Mehta, last time we wanted an affidavit and that is why we granted you time and now you are saying this.
SG : Having examined the issue, it is the stand of the govt that such issues can't be debate on affidavit. Such matters can't be a subject matter of debate before the court. Nonetheless, the issue is important so the committee will go into it. The stand of the Central Government is that whether a particular software was used or not cannot be a subject matter of an affidavit or debate in court or public discourse. Because the issue has its own pitfalls. The Central Govt does not want to file an affidavit on the use of Pegasus spyware. We would not like to place it in an affidavit in larger public interest and security of the nation.
Justice Surya Kant : Last time we clarified that none is interested in matters related to national security. The only limited affidavit which we were expecting you to file was...there are citizens before us alleging infringement of rights..if you could clarify. All these issues can be limited to the class of citizens alleging violation of right to privacy under Article 21.
CJI : We are again reiterating we are not interested in knowing matters related to security or defence. We are only concerned, as my brother said, we have journalist, activists etc before us, to know whether Govt has used any method other than admissible under law.
CJI refers to the statement made by former IT Minister R S Prasad in 2019 on #Pegasus issue.
SG says the statement is referred in the counter-affidavit. SG refers to the statement made by new IT Minister Ashwini Vaishnaw in recent monsoon session. "This is the latest statement made by the Minister on the floor of the house", SG says, reading out the statement. Solicitor General stresses on the IT Minister's statement that any form of illegal surveillance is not possible within our robust system of checks and balances. "This is important", SG highlights this statement of IT Minister Ashwini Vaishnaw.
SG : If some individuals are claiming invasion of privacy, the government takes it seriously. It has to be gone into and it will be gone into. For this, the govt has suggested the formation of a committee.
SG says that making the issue regarding use of Pegasus a matter of affidavit or public discourse will not be interest of national security or larger national interest.
CJI : We are sorry to say Mr. Mehta. We are going back again and again on the point as if we want to know everything the govt is doing. We reiterate we don't want to know anything about national security. The issue before us is, we have citizens saying their phones were tapped. The Minister also says that.
SG : The Minister only referred to reports regarding that.
CJI : We had to have your affidavit to understand where you stand..there is an established procedure for interception.
CJI to Sibal :We had given fair opportunity to Centre to make a statement. Now they don't want to file affidavit. so we will pass an order like that... what to do.
Sibal refers to the judgment in Ram Jethmalani case (black money case).
Sibal : State may not act in a matter which prevents this court from rendering complete justice by withholding information. (Quotes from the judgment ) State has a duty to reveal all information to the court and the petitioners. In a matter relating to violation of fundamental rights, state cannot act like an adversary. (Quotes from black money case judgment) Withholding of information by the state is a violation of the freedom of speech and expression of citizens. All we want to know if the State has used Pegasus. But my learned friend is saying that it will be detrimental to national interest. I'm sorry, to not say that will be detrimental to justice. This spyware is per-se illegal. It cannot be used. Ordinary citizens were targeted. This is a serious issue. State cannot say that they can't tell the court. In 2019, the Minister spoke about this. About targeting of individuals. What action state has taken? Have they filed an FIR? Have they acted against NSO? It is unbelievable, that the Government of India says that it won't tell the Court.
Sibal points out to the bench the statement made by former IT Minister R S Prasad
in Parliament in response to question of Asad Owaisi on Pegasus issue
Sibal : Minister said govt has taken note of the reports about 120 Indians phones being infected by Pegasus. The statement is an admission.
Sibal refers to former IT Minister R S Prasad statement about CERT-IN issuing notice to WhatsApp on Pegasus issue. "What has happened to that?" Sibal refers to the definition of "cyber incidents" under IT Rules.
Sibal : The petitioners have said that their privacy has been impacted, their devices targeted. And the govt now says it does not want to file an affidavit ! International agencies have accepted the fact that Indian were targeted. Experts have said phones of Indians have been hacked. They have no bias against India. Yesterday, Germany also accepted that. But the Govt of India does not want to accept. The fact that they(Govt of India) have not denied it means that they have used it.
Sibal refers to the Hawala case where a panel of retired judges were constituted to probe the allegations and prays for a similar course to be adopted in Pegasus cases.
Sibal :Why should government be allowed to form a committee on its own? It should be completely away from govt control.
CJI : We thought the Government will file a counter-affidavit and will decide further course of action. Now the only issue to be considered is the interim orders to be passed.
CJI tells Shyam Divan to make submissions only on interim reliefs and tells him that he need not repeat the submissions of Sibal.
Divan : In the realm of Parliament, a statement by Minister is sufficient. But in court, the rule of pleadings is important and hence it is necessary to file an affidavit.
Divan refers to an affidavit filed by cyber security expert V Anand on #Pegasus spyware. Divan refers to an affidavit filed by cyber expert Sandeep Shukla. "He is the topmost cyber expert in the country. He has conducted lab experiments on Pegasus".
CJI : Mr.Divan, we are aware of this. This malware can be infected without the knowledge of the user. We have read the reports. These are facts relating to technical aspects.
Divan refers to expert opinion of v. Anand : This is not like wire-tapping. Pegasus is not just a surveillance mechanism. It can implant false data and documents in the device, if it is deployed by an external agency, it is the duty of the Govt of India to protect the citizens. If it is deployed by the Government of India, my submission is, this cannot be done under the IT Act. We have sought an interim prayer to direct the filing of a disclosure affidavit by the Cabinet Secretary. My client is a retired IIM Professor and if people like him are targeted, then it is a direct assault on democracy.
Divan concludes.
SG says he wants to respond.
CJI : Mr.Mehta we will give you time. Now Sr Adv Dinesh Dwivedi for petitioner makes submissions.
Dwivedi refers to Order 8 Rule 3 of CPC which says that a denial by a defendant must be specific and denial should not be general. Rule 4 says denial should not be evasive. Dwivedi refers to Rule 5 Order 8 CPC to state that facts which are not denied specifically must be construed to have been admitted. Dwivedi says that the statements in the Govt affidavit are contradictory. In one place they say that the allegations are baseless but in other place they say allegations are serious and so they are constituting a committee, he argues.
Dwivedi : I am a journalist whose phone has been snooped upon. This fact has not been denied specifically.
Dwivedi is appearing for journalist Paranjoy Guha Thakurta who says his phone has been targeted by the malware. Dwivedi refers to the NSO statement that they given services only to sovereign states.
Dwivedi : It is only the state or state agencies which get the license to use this. Petitioner is a journalist. If there is snooping, a journalists' right to speech and expression gets affected and not just right to privacy. The question of chilling effect on speech is arising loud and clear in this case.
Dwivedi refers to paragraphs in Puttaswamy case, Rajagopal case etc.
CJI : For what purpose you are citing these judgments?
Dwivedi : To show that this has a chilling effect on free speech.
Solicitor General : I am not disputing that.
Sr Adv Rakesh Dwivedi : Committee has to be formed not by the Govt. It is a question of credibility. Allowing the Govt to constitute a committee and asking our phones to be surrendered to it will be a secretive exercise. It will not be a credible exercise in which people of the country will have faith. If the govt made a statement at least saying we have not used the malware or spied on the petitioners, that would have been the end of the matter. The Govt should be asked to say if they have used the spyware or not. Second this, your lordships should enquire into matter instead of a govt committee.
Sr Adv Colin Gonsalves appearing in petitions filed by SFLC.in and alleged Pegasus target Prasad Chouhan. '"Union of India and state govts have been engaging in widespread surveillance for very very long report".
Gonsalves refers to a report by Citizens Lab.
Solicitor General : I have reservations about this report. Mr.Gonsalves has this habit of referring to self-serving reports. I did not say this for the others.
Gonsavles says 5000 interception orders are issued every month. He also refers to NDTV report.
CJI : We are not on these issues. We are going to consider what is the interim order we can pass in these cases.
Gonsalves : I'm referring to these to say that Central Govt and States are indulging in widespread interception. If that is the case, we cannot rely on the principal wrong doer to form a committee and do an investigation.
Gonsalves refers to reports about what other countries have done in this issue.
CJI : We are not concerned about other countries. We will consider these issues later. We are at interim stage. Any other counsels?
ML Sharma appears.
CJI : Yes Mr.Sharma, keep it short.
Sharma : One day, your lordship's colleague judge said, I forgot his name...
CJI : Is this the way you argue? You don't know the name of the judge?. Are you not practicing in this court?
Solicitor General says Sharma referring to judge as "colleague judge" is inappropriate.
Sharma says other petitions are based on news paper reports and his case is different.
CJI : Then we will de-tag your petition from other cases.
Sharma says Pegasus can be used to implant documents in device. Investigating agencies can create evidence, he says.
CJI : Is it your case that the government has implanted any document in your device? Who is the petitioner?
ML Sharma : I am the petitioner in person.
CJI : Is it your case that the govt has used malware against you? Is it your case that the govt has used malware to fix you in any case.
Sharma : Yes. Suddenly your lordship has given me opportunity to argue.
CJI : Suddenly? You were here from morning.
Sharma : I was under impression I will not get opportunity to argue properly.
Sharma says in Bhima Koregaon case evidences were planted against civil rights activists.
Sharma : Please pass over. I will come back after 30 mins.
CJI : Mr.Sharma, don't stall the hearings.
CJI : Anymore counsels?
Sr Adv Meenakshi Arora for RS MP John Brittas says there should a SIT headed by a retired judge to investigate the matter.
Now Solicitor General responds.
SG : I want to put things in correct perspective. The Govt can't afford to be sensationalizing the issue. There is a marginal difference between protecting the rights of citizens and entering the zone where we will compromise national security. My case is simple. There is a statutory regime in place. Interception per se is not an impermissible activity. All technologies can be used and abused. Govt's commitment becomes apparent from the fact that it says let all these issues go before domain experts. There is no reason to doubt the credibility of the committee. This is an assurance given by me. The experts will have no relation with the government. Second thing, the report will come before your lordships. There is a facade created that the government does not want to reveal things. The government has nothing to hide. The committee will be answerable to the court. I don't have the luxury of citing preconceived reports. The insistence that it must come in public domain, please consider the harm it will cause. Suppose I am saying that I am not using this software. Then it will alert the terror group. If I say I am using this software, please remember, every software has a counter-software. The groups will take preemptive steps.
CJI : We are repeatedly saying that we don't want things on national security in public domain. Petitioners have also said. Suppose the committee is formed. Its report will also come in public domain.
SG : That is for your lordships to decide.
CJI : We have to do something. You have something else to say.
SG : No. CJI : Mr. Mehta, beating about the bush will not solve the issue. Let us see what order we have to pass.
Senior Adv Harish Salve mentions the petition filed against the judicial enquiry ordered by West Bengal.
CJI : Let us see, what order we will pass in this case.
Judges are discussing among themselves. Court muted.
CJI : We are reserving and will pass an interim order. It might take 2-3 days to pass the orders. Mr.Mehta, if there is any rethinking, you can mention the matter before us.
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