Pegasus | 'Truth Has to Come Out': SC Asks Petitioners to Serve Copies to Union Govt

'When they amended the IT Act in 2009, they never contemplated such a sophisticated attack. So judiciary has to take a vanguard position,' advocate Arvind Datar told the court.

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New Delhi: The Supreme Court asked petitioners who had moved court seeking an inquiry into the revelations of the Pegasus Project investigations to serve copies of the petitions to the Union government of India so that counsel for the latter can be present in court to take the notice that will presumably be served on it.

A bench of the Chief Justice of India, N.V. Ramana, and Justice Surya Kant listed the matter for Tuesday, August 10. The bench also noted that the allegations were “serious” if the media reports were true and that the “truth has to come out.”

Activist and petitioner Jagdeep Chhokar’s advocate Shyam Divan said that copies of his petitions were served on the Attorney General and Solicitor General in advance.

“Then all the other counsels, let them serve copies to the government. Somebody should appear for the government to take notice,” the CJI said.

A total of nine petitions had been filed on the findings made public by the Pegasus Project, a collaborative investigation that involves more than 80 journalists from 17 news organisations – including The Wire – in 10 countries, coordinated by Forbidden Stories with the technical support of Amnesty International’s Security Lab.

The Wire has so far revealed the names of over 160 individuals – including politicians of the opposition, journalists, a former Supreme Court judge, activists and the woman who had alleged sexual harassment by former CJI Ranjan Gogoi – who had been potentially or successfully snooped upon.

Four journalists – Paranjoy Guha Thakurta, S.N.M. Abdi, Prem Shankar Jha and Rupesh Kumar Singh – and activist Ipsa Shatakshi moved Supreme Court with three separate petitions, noting that their phones had been hacked into using the spyware and that forensic examination had proved so.

In addition senior journalists N.Ram and Sashi Kumar had also filed a PIL, as did advocate M.L. Sharma, Rajya Sabha MP John Brittas, the Editors Guild of India, activist Jagdeep Chhokar, and Narendra Mishra.

‘Vetted governments’

The court saw spirited arguments in favour of an investigation into the revelations. The following are quotes from LiveLaw’s live blog of the court proceedings, unless indicated otherwise.

Arguing first, advocate Kapil Sibal, for Ram and Kumar, called Pegasus a “rogue technology which enters our lives without our knowledge.”

“It surveys every minute of our moment. It is an assault on privacy, dignity and values of our republic,” Sibal said. Sibal called to question the Israeli NSO Group’s claim that it only sold the spyware to “vetted governments.”

Ramana said that “vetted governments” could also mean state governments. Sibal said he did not know about that.

Sibal also noted the report published last evening on The Wire, on possible snooping on key members of the legal system.

“Registrars serving in this court. An old number of a member of judiciary is also mentioned. I don’t want to enter into that,” he said.

“All we want is a notice at this stage,” Sibal added.

“Reports of snooping came in 2019, I do not know whether any efforts were made to get more information. I am not going into facts of each case, some people claim phones intercepted,” the CJI noted.

Advocate C.U. Singh said while the Pegasus affair did come into public knowledge in 2019, the findings were only recently made available.

‘Not just some media reports’

Senior advocate Meenakshi Arora, appearing for MP John Brittas, also referred to a statement made by the former Union IT minister Ravi Shankar Prasad, in 2019, in which he said, “To the best of his knowledge, there was no unauthorised interception”.

“If you have said in 2019 that you have not done, and now it is known that it has been done, there is a need to investigate,” Arora said.

CJI Ramana also asked why, “If you know that your phone is hacked, why are you not filing an FIR?”

Shyam Divan, advocate for Jagdeep Chhokar, said, “These are not some media reports. Two governments, US and France, have alerted the Israel govt and its response was sought. These are not just some media reports.”

Also read: As Multiple Governments React to Pegasus Exposé, India Is an Outlier

Divan highlighted how the nature of the people potentially snooped upon indicated that the person who did the snooping was highly placed.

“Given the dimensions of the case, it must have been by a high-level bureaucrat who has access to different ministries…This case requires a independent probe by a fact finding committee,” Divan said.

Rakesh Dwivedi appearing for journalist S.N.M. Abdi, too, highlighted that this “is not a case of an individual’s phone” having been bugged, but “mass action” and a case in which the Union government “should have taken action on its own”

‘Section 66A’

Senior advocate Arvind P. Datar sought to establish the unique lawless nature of the attack and the lack of recourse available to those attacked.

“As per Section 43 of the IT Act, I can file suit for damages, however we don’t know who has hacked our phones therefore civil remedy is useless…The criminal provision in IT Ac 66E refers to infringement of privacy in relation to bodily parts. That is not applicable here…There is no provision for filing FIR,” he said.

When the CJI asked if Section 66A of the IT Act is applicable, Datar reminded the court that it had been struck down.

In fact, noting that this cannot continue, the Supreme Court had, three days ago, issued notice to states, Union Territories and the registrar general of all high courts on the plea that people are still being booked under Section 66A of the IT Act.

“When they amended the IT Act in 2009, they never contemplated such a sophisticated attack. So judiciary has to take a vanguard position,” Datar said, noting that the judiciary “needs to take this as a class action kind of proceeding.”

CJI Ramana, near the end of the hearing, told advocate M.L. Sharma that he had added an individual – Prime Minister Narendra Modi – as respondent in the plea, and so the court cannot issue a notice on it straightaway.

Sharma, who had earlier on in the hearing, failed to establish connection with the case, volunteered to remove the individual name from his plea.

“You do whatever you want,” the CJI said.