Pegasus Spyware Probe #1: Union Offers To Constitute Committee, Petitioners Object To Union Affidavit

Pegasus Spyware Probe

August 16th 2021

A bench composed of CJI RamanaJ Surya Kant and J Aniruddha Bose heard the petitions related to the use of Pegasus spyware on August 16th, 2021.

Was Pegasus Used? Union Does Not Provide a Clear Answer

Solicitor General Tushar Mehta placed before the Court a short affidavit by the Additional Secretary of the Electronics and IT Ministry. He stated that it should be read with the Union IT Minister’s statement on the Parliament floor.

Mr. Mehta argued that the petitions are based on sensationalised reports from web portals. Since the parties have not established a case beyond these reports, the Union Government is not duty bound to disclose any more information.

Union Offers to Constitute Independent Expert Committee

Mr. Mehta emphasised that the Government has nothing to hide – the affidavit suggests that the Government will set up a Committee comprising independent experts to investigate the matter. He further added that this investigation will be conducted to shut down false reports being spread by parties with vested interests.

Mr. Sibal, appearing for journalists N. Ram and Sashi Kumar, pointed out that if the Government had indeed used Pegasus, it could not be trusted to set up the Expert Committee. To this, Mr. Mehta responded that the Government must be trusted to select the Committee members in good faith.

Ramana CJI stated that the case involves two sets of questions. The first was to determine whether a phone(s) was indeed infected with Pegasus spyware. The second was to see if any such surveillance was authorised by the government and adhered to all procedures and regulation. He asked who would investigate the second set of questions.

Mr. Mehta suggested that the same expert committee can investigate both sets of questions if the Court wishes and set the Committee’s terms of reference.

Petitioners Object to ‘Skimpy Affidavit’, Demand Detailed Answers

Senior Advocate Kapil Sibal argued that the judiciary and the press are two important institutions that protect human rights and democracy. The use of Pegasus has put both institutions under surveillance. He submitted that the pressing concern in this case was not just the privacy of individuals, but also the security of institutions.

Mr. Sibal noted that the Government affidavit neither confirms nor denies the use of Pegasus spyware. Mr. Shyam Divan, appearing for Jagdeep Chhokar, similarly stated that this ‘skimpy affidavit’ was not enough to address the privacy rights violations in this case. Mr. Sibal argued that the Government must file an additional affidavit stating whether it used Pegasus or not, and if yes, under what law?

Sr. Adv. Rakesh Dwivedi, appearing for journalist SNM Abdi, agreed with Mr. Sibal’s request for a more detaled government response. He invoked the Puttaswamy case and said that the Court must delve into the the Government’s use of Pegasus to decide to if it violates privacy rights.

Mr. Sibal said that as per the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, encrypted messages can only be intercepted with permission of the Home Secretary. So, if Pegasus was used for legal interception, the Home Secretary must have known about it. Mr. Sibal asked for an affidavit from the Home Secretary.

Mr. Sibal further told the Court that Whatsapp had complained about a Pegausus-related privacy breach to the IT Ministry back in 2019. He wanted the Government to report to the Court on what actions it took in response to this complaint.

Mr Sibal asked the Court to give the government more time to file a detailed affidavit on the petitioners’ concerns.

SG: National Security at Stake, Pegasus Matter Not a Simple ‘Yes’ or ‘No’

The SG, on behalf of the Union, stated that there were sufficient checks and balances in place to ensure that Government interceptions into data privacy occur only when necessary. He stated such invasions into privacy involved questions of national security. He suggested that filing an additional affidavit would be futile and said that even if the Government stated clearly that it had not used Pegasus, the petitioners would not withdraw their petitions. So, an additional affidavit from the Government would waste the Court’s time.

Mr. Sibal responded by saying that a clear statement from the Government on whether it used or did not use Pegasus would allow the petitioners to frame their arguments and remedies accordingly.

CJI Ramana stated that the Court cannot compel the Government to file an additional affidavit. It allowed Mr. Mehta a day’s time to confer with the Government on whether it would provide more details under oath.

The matter will be heard next on 17th August, 2021.