Pegasus in Apex court | Govt offers to set up committee to clear air

A two-page "skimpy" and "delightfully non-committal" affidavit filed by the government in the Supreme Court shortly before the hearing on Monday, denying "all and any" allegations of using Pegasus to snoop on journalists, activists, dissenters, Supreme Court officers, Ministers, parliamentarians and the Opposition, raised a clamour among the petitioners, who said the Centre, through the Union Home Secretary, should swear on oath before the apex court whether the government or any of its agencies used Pegasus spyware or not.

"The sum and substance is they (petitioners) are not satisfied with your limited affidavit. They want to know in clear terms whether the government has used Pegasus or not... If you want time to file a detailed affidavit, you can take time," Chief Justice of India N.V. Ramana addressed Solicitor General Tushar Mehta.

But Mr. Mehta said even a "detailed affidavit" may not appease the petitioners. He asked whether the petitioners would swear to withdraw from court if the government said "no" to using the Pegasus in a further "one-page affidavit". Mr. Mehta indicated that things were not "so simple". Any discussion on this issue would involve national security.

"We are dealing with a sensitive matter. Attempts are being made to make it sensational," Mr. Mehta complained.

"If the government is reluctant about filing a detailed affidavit, how can we compel them to?" the CJI turned to senior advocate Kapil Sibal, appearing for veteran journalists N. Ram and Sashi Kumar.

"Well, that would mean they don't want to admit or deny (to using Pegasus)... Then I can argue that they have not denied. Then the matter gets more serious... We want a straight answer. Did the government or any of its agencies use Pegasus? That question does not deal with national security. Again, if the government has used Pegasus, did they use it through the Home Secretary. That again does not concern national security... So, let them file an affidavit," Mr. Sibal replied.

The Solicitor General clarified that there was no reluctance of any kind on the part of the government. "The truth must come out," Mr. Mehta said. He wistfully referred to the Information Technology Act, which dealt with the regime of interceptions, monitoring, etc, of digital communications, as a "beautiful legislation". Mr. Mehta said the Act came into effect during the tenure of Mr. Sibal as Minister.

"Mr. Mehta, beauty over the years becomes no longer beautiful. It was once beautiful, but is no longer so the way you are using it," Mr. Sibal retorted.

At one point, Justice Aniruddha Bose, on the Bench, asked whether there was any material other than news reports to suggest "violation" had taken place.

To this, Mr. Sibal said the Ministry of Electronics and Information Technology (MeitY) had stated in the Lok Sabha in 2019 that social media messaging platform, WhatsApp, had informed the government about attempts to breach the mobile phones of 1400 users globally, including 121 users in India, using Pegasus. 

The court stood over the arguments in the case to Tuesday, while at the same time asking Mr. Mehta to mull over with officials the point of filing a detailed affidavit.

Affidavit details

The two-page affidavit, containing just about six paragraphs, was filed by an Additional Secretary in the MeitY. The official said he could not "deal" with "all the facts and contentions" in the petitions due to "limited time", but he nevertheless went on to "unequivocally" deny the allegations in them. He said a "bare perusal" of the petitions revealed that they were based on "conjectures, surmises" drawn from "unsubstantiated media reports or incomplete or uncorroborated material". However, the Ministry affidavit, in its fifth paragraph, said the government would form a Committee of Experts to dispel the "wrong narrative" spread by "vested interests".

Senior advocate Shyam Divan found the affidavit "skimpy" while senior advocate Meenakshi Arora termed it "delightfully non-committal".

The rebuttal

Mr. Sibal rebutted the affidavit on five points. One, he said it was filed by the Ministry of Electronics and Information Technology and not the Ministry of Home Affairs which authorised surveillance under the law.

Secondly, the affidavit skips the part on whether the government or its agencies used Pegasus at all. Thirdly, he said if the government did not get the time to study the petitions and reply to them, then the court should give them the time. The court agreed to this view.

 Fourthly, the senior lawyer countered that the affidavit did not even say whether the "facts and contentions" in the petitions were right or wrong.

"Finally, and most importantly, we do not want a government who might have used Pegasus to form a Committee of Experts to inquire into the issue. As far as I am concerned, the issue is simple. If the government says they have used the Pegasus, there is no need for a Committee. If the government says they have not used the Pegasus, then too, there is no need for a Committee," Mr. Sibal reasoned.

"For what purpose is this Committee?" the CJI asked.

Mr. Mehta said the offer to form a Committee of Experts was a "bona fide gesture" from the government to clear the air. The law officer even invited the Supreme Court to frame the terms of reference of the Committee. He said the Committee's task would be "highly technical". He said it would be peopled by "neutral experts".  "A government-appointed committee should be trusted... You must know that everything on this issue is based on news reports, but let the Committee go into it..." Mr. Mehta submitted.

Mr. Sibal submitted that France has initiated a national level investigation into the Pegasus surveillance. Israel has raided the offices of the NSO Group, which is the creator of Pegasus. The US courts are seized of the issue.

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