New Delhi: The Union government on Monday, September 13, expressed unwillingness to file a detailed affidavit on the Pegasus matter, citing that it was concerned over national security. Consequently, the Supreme Court reserved its interim order on a batch of petitions calling for investigation into the use of the spyware on Indian citizens.
A bench of Chief Justice of India N.V. Ramana, Justice Surya Kant and Justice Hima Kohli was hearing the matter.
As part of the Pegasus Project, The Wire and other international publications, reported on a leaked database of phone numbers which could have been potentially snooped upon with the use of a malware sold by Israel’s NSO Group. The group has claimed it only has ‘government’ clients. As the The Wire has revealed, in India, those potentially and successfully spied upon include opposition politicians, activists, industrialists, lawyers and journalists.
In the aftermath of the revelations, and amidst sustained and ignored demand for the matter to be discussed in parliament, a section of journalists, lawyers, activists and politicians – including five confirmed targets on whom the Pegasus software was used – moved Supreme Court, asking for a judicial probe into the row.
Clubbing the petitions, the Supreme Court had, on August 17, issued notice to the Union government for its response on the reports. On September 7, the government said it needed more time to file the affidavit, leading the apex court to postpone the hearing to September 13, today.
Solicitor General Tushar Mehta’s claim today that an affidavit would compromise national security was a repeat of what he said on August 17, when he cited that a terrorist organisation could take preventive steps if details are divulged.
“Whether it has been done by A software or B software cannot be said on affidavit. Domain experts unconnected with the government will be looking into it and we will place all before them,” the Solicitor General said, according to a report by Indian Express.
The Supreme Court, too, repeated what it had said earlier.
“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,” it said, according to LiveLaw.
The SG sought to impress upon the court that “every software has a counter-software” and an affidavit admitting the use of a particular software would affect the functioning of anti-terror methods.
‘Cannot rely on wrongdoer to investigate’
The petitioners’ counsels sought to establish the inherent contradiction of the government’s stance. Journalist Paranjoy Guha Thakurta, in whose phone the Amnesty International lab found evidence of the use of Pegasus, and who is represented by senior advocate Dinesh Dwivedi, said, “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.”
Dwivedi also noted that there has not been an express denial by the government on use of Pegasus on anyone’s phone.
“Petitioner [Guha Thakurta] 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 said, according to LiveLaw.
While the SG stressed on a government-approved committee to look into the matter, counsel of other petitioners pointed out the fallacy of such an exercise considering that their main contention was whether the government itself had used the software.
Advocate Rakesh Dwivedi, appearing for journalist S.N.M. Abdi, whose phone was also confirmed to have been spied upon, said, “It will not be a credible exercise in which people of the country will have faith.”
Dwivedi, too, stressed that the government should come clean on whether it used Pegasus for spying on the petitioners.
Senior advocate Colin Gonsalves also struck a similar tone, noting, “…[W]e cannot rely on the principal wrong doer to form a committee and do an investigation.”
SG repeats IT minister’s flawed claim
The SG, however, did not move from the claim that ‘national security’ will be affected by its affidavit, noting that there was little difference between protecting citizens’ rights and comprising security.
“The government can’t afford to be sensationalizsing the issue. There is a marginal difference between protecting the rights of citizens and entering the zone where we will compromise national security,” he said, according to LiveLaw.
The Solicitor General stressed on the IT minister Ashwini Vaishnaw’s statement in parliament, on any form of illegal surveillance not being possible. Vaishnaw himself is on the list of potential victims of the spying operation.
More importantly, The Wire has highlighted how Vaishnaw had misled the Lok Sabha by saying that there was “no factual basis” to claim an earlier Pegasus attack. The minister had stated in the House that “In the past, similar claims were made regarding the use of Pegasus on WhatsApp, those reports had no factual basis and has been denied by all parties….”
However, this is contradicted by answers provided by his ministry to RTI queries and parliament questions in the past.
Note: A previous version of this article erroneously identified Paranjoy Guha Thakurta’s counsel as Shyam Divan. It is Dinesh Dwivedi.