The Supreme Court on Monday continued its hearing on a batch of petitions seeking SIT/judicial probe into the reports of snooping using the Israel spyware Pegasus.
Senior Advocate Kapil Sibal, who was representing Journalist N Ram, pointed out three issues in the affidavit of the Central government.
- The Central Government has to state on oath if the Govt of India or any of its agency has used Pegasus. If they don’t, our arguments will be different. This fact must be denied or stated by them if Pegasus was ever used. They must state why facts stated in the petition are wrong, that the government of India or its agencies has nothing to do with Pegasus.
- The Central Government says they have nothing to do with Pegasus. In one of the petitions by Editors Guild of India, in response to a question raised by Mr Owaisi, the Government said that spyware was developed by Israel group and stated that there are 121 users in India, This was in 2019. What have they done till then? That’s why they don’t want to respond to facts. This is a serious question, as many have said their phones were infiltrated.
- I am more concerned with Institutions. Two Institutions which protect democracy are Journalism and Judiciary. They have been infiltrated! This Institution, which protects the rights of people, cannot be allowed to be infiltrated.
Thereafter, Mr Sibal took the Bench through the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009. Mr Sibal read out Rule 3, which said, “No person shall carry out interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub-section (2) of sec 69 of Act, except by an order issued by competent authority.”
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“Affidavit hasn’t even been filed by Home Secretary, it’s filed by Additional Secretary in Ministry of Information Technology . These matters are to be dealt with by the Home Secretary. If there has been an interception legally the Home Secretary will have all information. If he says he doesn’t know, it means everything was done outside law, which was knows since 2019,” he added.
Senior Advocate Rakesh Dwivedi, appearing for SNM Abdi, submitted, “I endorse what Mr Sibal has said. There is nothing in the Minister’s statement that the Government is NOT using Pegasus. There’s nothing that says they haven’t used the facility & agencies are not using it.
“The petitioner’s phone was infiltrated. There is an analysis done by Amnesty. I would have been happy if the Government said the spyware wasn’t used. What’s important is if it was used against me.”
Mr Dwivedi, emphasising on the Puttaswamy case said, “When the scheme of Aadhar was examined, this court went into the entire scheme and concluded that the entire software was protected and there was no chance of leakage. In this case, nothing is indicated under what provision of law!
“There is no denial, no statement regarding law supporting the user or a statement that it wasn’t used against me. Give them time, these are statements they need to make. They haven’t stated who are going to be members of this Committee.
“If at all it’s constituted, it has to be an independent committee under supervision of this Court. The question in all petitions is against the government! So the government forming a committee will not create any confidence in people,” he added.
The bench, led by Chief Justice N. V. Ramana and also comprising Justice Surya Kant and Justice Aniruddha Bose said, “If Government is reluctant and says they don’t want to file an affidavit, how do we compel them?”
“We will continue tomorrow. If you have a change of mind, let us know tomorrow,” the Bench told the Solicitor General.
The bench then adjourned the matter till tomorrow.
The petitions are related to reports of alleged snooping by the government agencies on eminent citizens, politicians and scribes by using Israeli firm NSO’s spyware Pegasus.
An international media consortium had reported that over 300 verified Indian mobile phone numbers were on a list of potential targets for surveillance using Pegasus Spyware.
Opposition leaders, including Rahul Gandhi; two Union Ministers – Prahlad Singh Patel (Minister of State for Jal Shakti) and Ashwini Vaishnaw (Railways and IT Minister); businessman Anil Ambani; a former CBI chief and at least 40 journalists were on the list on the leaked database of NSO. It is, however, not established that all phones were hacked. The Government has denied all allegations in the matter.