SC To Pass Interim Orders On Pegasus Issue As Government Declines To File 'Detailed Affidavit' For National Security Reasons

Yesterday (13 September), the Supreme Court decided to pass interim orders on the Pegasus issue.

The Pegasus is a highly-advanced spyware that can gain access to someone’s cellphone after the user clicks a link sent by it, or even with a missed call. After installing itself stealthily, Pegasus begins to contact control servers which allow it to send commands to gather data from the infected device.

Pegasus, therefore, can allegedly steal passwords, contacts, text messages, calendar info, as well as voice and video calls made through WhatsApp and even track live location.

The Israeli cyberarms firm NSO Group which developed Pegasus says on its website, “NSO products are used exclusively by government intelligence and law enforcement agencies to fight crime and terror.”

The Pegasus controversy broke out when two months ago a report by French media nonprofit, Forbidden Stories, and Amnesty International alleged that the software had been used to conduct surveillance on about 300 Indians, including two serving cabinet ministers, three opposition leaders, a constitutional authority, government officials, scientists, and about 40 journalists.

IT Minister Ashwini Vaishnaw, responding to the allegations in Lok Sabha had said that India had a "well established procedure through which lawful interception of electronic communication is carried out for the purpose of national security" which ensures that unauthorised surveillance does not occur.

The opposition parties have been since demanding an independent probe into the matter. The matter was brought to the Supreme Court and the petitioners N Ram and Sashi Kumar demanded that either the Cabinet Secretary file an affidavit or the court itself form a committee, led by a sitting judge, to probe the snooping controversy.

Centre's Response

The central government refused to file a 'detailed' affidavit on the Pegasus snooping allegations saying that such an affidavit in the court would be too public and compromise national security.

Solicitor General Tushar Mehta, representing the government, reasoned that a public discourse on whether a particular software was used or not would alert terrorists. Mehta objected to the petitioners' claim that the “government is denying protection to its own citizens” or is “assaulting democracy”. He said that the government could not afford to “sensationalise” such an “important” issue.

He urged the court to instead allow the government to form a committee of 'domain experts' who would look into the allegations. He assured that the committee members would have “no relationship” with the government, and would place their report before the Supreme Court.

“It has to be gone into, it must be gone into… It is the feeling of the government that such an issue cannot be placed on affidavit. It has to be gone through by a committee. It concerns national security,” he added.

Court's Interim Order

A bench of Chief Justice of India (CJI) N V Ramana and Justices Surya Kant and Hima Kohli was hearing the matter. They told the Solicitor General that there cannot be any “beating around the bush” on the matter.

Justice Kant said the court was equally concerned about the national security, but it cannot turn a deaf ear to concerns about privacy raised by citizens.

“We just wanted you to clarify whether their privacy was violated or not. Whether surveillance, if done at all, was after lawful permission. Was the interception done by any agency unlawfully? Should the government not be concerned if any 'outside agency' had violated our citizens’ privacy?” Justice Kant asked Mehta.

“We are not interested in matters concerning national security. Our only concern, in the face of allegations made by petitioners about use of some software against citizens, is knowing whether any government agency has used any method of interception other than in accordance with law,” Chief Justice Ramana said.

The CJI also questioned the practicality behind the government’s insistence on refusing to discuss the Pegasus allegations in open court, saying that even if an expert committee was formed, its work and the report would eventually become public.

He further said that the court had given the government a fair opportunity to file a detailed affidavit in order to get a clear idea of its stand in the Pegasus case. “We thought the government would file a counter-affidavit… Now we will pass our interim orders,” he said.

However, after reserving orders, the court told Solicitor General Tushar Mehta that he could mention the case if there were any second thoughts in the next few days before the pronouncement of the order.

Senior advocate Kapil Sibal, appearing for the petitioners, said the government’s refusal to file a detailed affidavit was “unbelievable”. He referred to a 2019 parliamentary response of the government taking note of the use of Pegasus. “Why did they not take action against the use of Pegasus… because they were using it. The government is committed to protecting the rights of citizens, including their privacy,” he submitted. He urged the court to have the allegations investigated by a sitting judge.