The Supreme Court hearing on Pegasus saw arguments from the Solicitor General of India who had been given time in yesterday’s hearing to check whether the government will file an additional affidavit.
The government of India today once again brought up “National Security” as the reason for not filing an additional affidavit in the Pegasus case, responding to complaints made by petitioners, even as the Supreme Court issued a notice before admission to the government. The matter will be heard now after 10 days.
“This cannot be a subject matter for public debate”, Tushar Mehta, the Solicitor General of India, saying that software can be used, and “we have nothing to hide. Which is used or not used is essentially a matter of national security.”
Terrorists will take preemptive actions if they know: Pointing towards the petitioners, Mehta said that “Mr Sibal pointed out that there is a statutory mechanism in the form of an Act and rules, which permits that you can have surveillance as per a defined procedure for terrorism and national security. All petitions pray for the Supreme Court to inquire into this. Yesterday, the stand was: either [the government says] that Pegasus was used or not used. Kindly appreciate that it is nobody’s case that IT procedures and rules are in existence for states national security purposes. These softwares can be used. They want us to divulge which software is not used. The purpose for which software is used by any country will not be divulged. Those who are likely to be intercepted will take preemptive and corrective steps.”
Mehta emphasised this point repeatedly, saying later that “Supposed I’m a terrorist organisation. I’m using several apparatus for communicating with my sleeper cells. I am obviously aware that there would be interception by agencies. Suppose the government says that Pegasus was not used. There are technologies that we are completely aware of. I will change my software to make it compatible. I say that Pegasus is not being used, then all the technologies can be reset.”
What about military equipment? “Say tomorrow a web portal”, referring to the Pegasus Project, which led to the disclosure that over 50,000 people globally, including 300 Indians, were being surveilled using Pegasus software, “says that military equipment are used for illegal purpose. A petition is filed by a person who has nothing to do with the issue and ask for the military to disclose whether this is used or not. For the government to divulge this and subject it to a public debate, I will be failing in my duty.”
What is the problem if that competent authority files an affidavit with us? To that point, NV Ramanna, the Chief Justice of India, said that the court, the SG, and all those appearing in this case, as officers of the court would not like to do anything to compromise the security of the country. Whatever the mechanisms deployed by the ministry, we won’t ask you to disclose any such thing. Irrespective of that, there are individuals, and some are persons of eminence, and they are alleging snooping and interception of their phones. This can also be done, but this has to be done by the permission of the competent authority. What is the problem if that competent authority files an affidavit with us? We don’t want a word that impacts national security. Like you we are reluctant about that coming into the public domain. So therefore, what we can do, we can issue a simple notice. Let the competent authority issue a response. We will see what has to be done.”
Technical committee once again: “These are the issues which we will place before the technical committee,” Mehta said. “I’m saying that there will be a committee of experts, and the committee will not be [government] officers. It will be neutral people. Everything will be before the committee. Could your lordships expect such information in an affidavit? My affidavit [submitted yesterday] suffices and there is nothing more to be done. I’m submitting that we have no difficulty in constituting a committee and it will report to your lordships. It is a sensitive matter and it needs to be dealt with sensitivity. There cannot be anything more fair than this.” Mehta emphasised that the information will be shared with the committee, and thus accessible to the court via the committee’s report, but it won’t be made public.
Was Pegasus used or not? “Just clarifying, on behalf of the petitioners,” Kapil Sibal said, “the security of the state is as important to the citizens as it is to the state. We don’t want the state to give any information of any aspect. That is not our petition. But he must reply to whether Pegasus was used or not.”
Who will constitute the committee? “We will discuss what needs to be done: if committee of experts needs to be made, or some other committee,” CJI Ramanna, said. The court hasn’t decided yet on a course of action – whether they’ll accept a government constituted committee, or the court will.
SFLC files petition: The Software Freedom Law Center filed a petition, and Senior Advocate Colin Gonsalves appeared on their behalf, and sought for their petition to be tagged with the petitions currently being heard.
WhatsApp was there: Senior Advocate Mukul Rohatgi made another appearance, on behalf of WhatsApp, but couldn’t get a word in. WhatsApp is also a respondent in this case, but it’s worth noting that they’ve sued Pegasus in a California court.
The previous hearings
August 16, 2021 [read]: Most of the discussions were focused on the limited affidavit filed by Dr. Rajendra Kumar, Additional Secretary, MEITY, and whether it adequately addressed the concerns raised by the petitioners. The Solicitor General of India belittled the petitions by saying that there’s an attempt to make a sensitive matter sensational, and also invoked National Security to try to avoid filing an additional affidavit. He said that the Union of India would constitute a committee of experts, even though he felt that “Nothing further needs to be done. There is no case made out”, while”denying every allegation.” Kapil Sibal pointed out three key issues with the limited affidavit filed by Dr. Kumar, which Meenakshi Arora, representing Rajya Sabha MP John Brittas, called “delightfully non-committal”, and Shyam Divan, representing Prof. Jagdeep Chhokar, called “skimpy”. Vikas Singh, representing Govindacharya, who had filed a petition in 2019 on the Pegasus issue, asked for his petition to be restored, but was asked to file a fresh petition.
Quotable Quotes from this hearing:
I’m more concerned with institutions. Institutions that protect democracy are journalists and courts. A registrar of the court, a lady in the court. It’s not about Pegasus, it’s about institutions. It is about the protection of the only institution of the country that protects the rights of the people. It cannot be allowed to be infiltrated in any such way.” – Kapil Sibal
This has ramifications which are larger than individual. Let them say on oath whether they used Pegasus or did not. What have they done, which contract, how much was paid. All that needs to come on record.” – Kapil Sibal
“The question of having an inquiry under the control of the government – the government supervising its own committee will not inspire any confidence. That committee should be under the control and supervision of this court.” – Rakesh Dwivedi
August 10, 2021: In the previous hearing last week, Tushar Mehta, the Solicitor General of India had sought time to seek instructions from the government. CJI Ramana asked petitioners to avoid parallel public debates, and to have faith in the system. Senior advocate Kapil Sibal, appearing for senior journalists N Ram and Sashi Kumar, mentioned that their affidavit had incorrectly mentioned that the California court had said that Indian phones are also tapped, and Ram had been trolled on social media after the first hearing.
August 5, 2021 [read]: In the first hearing, advocates representing petitioners had pointed out how Pegasus spyware works, the information it can be used to gain access to, the fact that it is sold only to governments, and the NSO Group acts with the government clients. CJI Ramana had sought clarifications from petitioners regarding why they haven’t filed criminal complaints, and why they’ve filed complaints now, given that Pegasus surveillance first came to light in May 2019.
Quotable quotes from that hearing:
“It’s not just an internal matter. It is a matter of our national security. We can’t give you all the answers. We cannot have access to these things. The government needs to come on board. If they’re using it, if they bought it, how are they using it? It costs $55,000 to penetrate into one mobile phone.” “This is posses a big threat to everything that our republic stands for. Give notice in all these petitions. Let them come on board and tell us what these facts are.” – Kapil Sibal
“For a private citizen to find that a spyware has been turned against him by the government, it is something unconsitutional. It constitutes a war against its own citizens” – Shyam Divan
- Pegasus Spyware: All the latest facts on who was targeted, the modus operandi, and more [Read here]
- All you need to know about NSO Group and its Pegasus spyware [Read here]
- Editors Guild of India demands probe over Pegasus reports while Reporters Without Borders mulls filing lawsuits against NSO [Read here & here]
- In Lok Sabha address, IT Minister doesn’t deny using Pegasus; behind it lies a history of unclear statements [Read here & here]
- Everything that the NSO Group has said so far on the allegations against Pegasus [Read here]
Views on surveillance reform and future steps
- The Pegasus exposé is a wake-up call for how a surveillance culture reduces public trust [read]
- Official response to Pegasus must be clearer. Plus, the system of authorising surveillance is flawed [read]
- Surveillance reform is the need of the hour [read]
- Pegasus Spyware: How do we rein in State surveillance? Here’s what experts had to say [read]
- Intelligence gathering needs to be professionalised, parliamentary oversight introduced, and liberties and laws protected [read]
- Edward Snowden calls for spyware trade ban amid Pegasus revelations [read]
- Understanding the efficacy of the proposed Personal Data Protection Bill is crucial in regards to entrenched networked surveillance [read]
Disclosure: Prof Jagdeep Chhokar, one of the petitioners in this case, is the uncle of the author of this article.
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