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Pegasus case: “Disclosing whether Pegasus was used will not reveal National Security secrets”; SC gives Govt till tomorrow to decide regarding additional affidavit

The Supreme Court was hearing a batch of pleas seeking an impartial probe into alleged surveillance using spyware that was first exposed by the Forbidden Stories consortium.

The Solicitor General of India was given time till tomorrow by the Supreme Court of India to check whether the Government of India will file an additional affidavit regarding the usage of Pegasus software. During the hearing today, 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. This followed arguments about whether an affidavit filed by Dr Rajendra Kumar, Additional Secretary, MEITY, in this matter actually addressed concerns raised in the petitions.

Kapil Sibal represented journalist N. Ram and Shashi Kumar, as well as the Editors Guild of India; Shyam Divan represented Prof Jagdeep Chhokar*, founder of the Association for Democratic Reforms; Meenakshi Arora represented Rajya Sabha MP John Brittas; Rakesh Dwivedi represented journalists Prem Shankar Jha and SNM Abdi; Senior Advocate Vikas Singh represented Govindacharya; Advocate ML Sharma, who was the first to file a petition, sought for his amended petition to be admitted, and that was granted.

Nothing further to be done; will constitute a committee: Government

“Nothing further needs to be done. There is no case made out,” Tushar Mehta said. “I’m denying every allegation. The Honourable Minister made it clear that this is a sensationalist story published by a web portal. I have annexed his statement. This is the stand of the Central govt. There is nothing to hide. There is nothing that needs examination.”

What the Affidavit says about the petitions: The “limited” affidavit filed by Dr. Rajendra Kumar, Additional Secretary, MEITY, explicitly denies the allegations in the petitions, saying that the petitions are based on conjectures and surmises, or on unsubstantiated media reports, and cannot be the basis for invoking a writ. He also clarified that the Union Minister had clarified the matter in Parliament and that nothing further needs to be done.

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Union of India will constitute a Committee of technical experts: Dr Kumar, in his affidavit, said that the Union of India will constitute a Committee of Experts in the field to go through all the aspects of the issue, in order to “dispel any wrong narrative spread by certain vested interests and with an object of examining the issues raised”. “In order to dispute any wrong narrative by vested interests,” Mehta said, the government will constitute a committee of experts. “This is a highly technical issue. We will appoint a neutral eminent people of the field. We will examine the matter and place it before your lordships.”

Three issues with the Additional Secretary’s Affidavit

Senior Advocate Kapil Sibal, representing journalist N. Ram and Shashi Kumar, as well as the Editors Guild of India highlighted three issues with the Affidavit.

Issue number one, he said, is that “it says that due to limited time it is not possible to deal with all the facts and the contentions raised in the batch of petitions. I have objections to that. They have to state whether Government of India or any agencies have ever used Pegasus. If they have, then our submissions have to be different. This fact has to be stated by them or denied by them. This is what we’ve alleged that they’ve not responded to that. They have enough time at their disposal. Please allow them as much time as they want.  This affidavit doesn’t answer the issues raised by us.”

“A bare perusal of the captioned petition,” Sibal said, highlighting his second issue, suggests “that the same are based on conjectures and surmises. If they aren’t answering the facts stated in the petition, how can they say that these are conjectures and surmises? How can they say this? I can demonstrate what the government says in the affidavit is wrong.”

Third, he said, “We don’t want a government whose agencies might have used Pegasus to create their own committee. I want mylords to give them enough time to give an affidavit on facts.”

Did you use it against me?

Senior Advocate Rakesh Dwivedi, representing journalists Prem Shankar Jha and SNM Abdi, concurring that the government hasn’t denied the usage of Pegasus in its affidavit, added later that “In case of Abdi, his phone has been found to have been infected by Pegasus. There is a prima facie report of an analysis done by Amnesty. I would have been happy if Government said the spyware wasn’t used. What is important is, did you use it against me [Abdi] or not?”

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Delightfully Non-committal: Senior Advocate Meenakshi Arora, representing Rajya Sabha MP John Brittas, said that the affidavit “is delightfully non-committal. Neither the Minister commits to anything, nor does the affidavit say so. Most of the petitions say that they want an investigation. Other jurisdictions have taken note that there is an issue.”

Skimpy affidavit: “This is an article 32 petition, and I’m entitled to place for notice and relief. It is not a matter to be torched by the Union with a skimpy petition”, Senior Advocate Shyam Divan said.

Concerned about institutions: Sibal cited the response the Government made in Parliament, addressing a question raised by MP Asaduddin Owaisi, wherein the government acknowledged that they were informed by WhatsApp that 121 users in India had been impacted in 2019, as well as a CERT-IN’s vulnerability report, and that they had issued a formal notice to WhatsApp, to indicate that the government was aware of Pegasus usage. “All that information must come on record”, he added. “The Government must explain what they have done from 2019 to 2021. Have they lodged an FIR? Sought prosecution? Filed complaints with the Israeli government? What have they done? That is why they don’t want to respond to facts. There are many [petitioners] here, whose phones were impacted.”

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

Affidavit isn’t by Secretary for Home Affairs

Citing Rule 3 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, which states that ‘No person shall carry out the interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub-section (2) of section 69 of the Act, except by an order issued by the competent authority’, Sibal pointed out that the competent authority here is the Secretary in the Ministry of Home Affairs.

“This affidavit hasn’t even been filed by the Home Secretary. It’s been filed by the additional secretary of MEITY. Now, if there has been a legal interception, then the Home secretary will have all the information. If he says that he doesn’t know, then that means that everyting done was outside the law, of which the Government of India knew in 2019.”…”France has started an investigation at a national level, and through court procedures. Israel has raided Pegasus, and is conducting an inquiry. The Government of India says that everything is fine. This is wholly unacceptablle. 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

Cabinet Secretary must respond: Divan pointed out that three affidavits have been filed – one about the Petitioner Jagdeep Chhokar*, another by Professor Sandeep K. Shukla, and another, which the court acknowledged, by Mr Anand V*. He added that they’ve requested that the Cabinet Secretary respond, and have cited three judgments of this Court, where the Court had requested the Cabinet Secretary to respond.

No law to permit the usage of Pegasus: Rakesh Dwivedi highlighted that the use of Pegasus has to be authorised and permitted by some law of Parliament, pointing towards the Puttaswamy case, where the structure and scheme of Aadhar were being examined. “There is no law which permits the government to use the [Pegasus] software, he said.

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Committee has to be neutral and independent, and report to SC: Dwivedi said that in the affidavit, the government has not specified the reason for the formation of the committee, or detailed who the members are going to be. “If it has to be constituted it has to be neutral and independent and report on to the [Supreme Court].

“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

Sensitive – Sensational: Responding to comments made, Solicitor General of India Tushar Mehta said that “We are dealing with a matter which is a sensitive matter, and the attempt is to make it sensational. Since I haven’t dealt with the petition parawise, I haven’t admitted anything.” Mehta pointed towards the statement given by the Minister on the floor of the house, saying that requests for surveillance are made as per the relevant rules of the Telegraph Act and Section 69 of the IT Act. “Each case of interception and monintoring is approved by the competent authority”, he said, adding that “There is established oversight”, he said, in case of both the central and state governments, and the law also provides for an adjudication process.

National Security invoked

“If you are convinced that this needs to be gone into,” Mehta said, “there would be issues of national security. It cannot be as simple as filing an affidavit. That cannot be the medium through which the courts adjudicatory process can be invoked. The minister has given a detail about how this has been raging fire for a few years.” Mehta repeatedly highlighted national security concerns, while adding that there are systems in place, and a procedure prescribed, for surveillance. He also repeatedly asked whether the petitioners would withdraw, if an affidavit is filed saying that Pegasus was never used.

“We just want a statement of fact that the government did or did not use Pegasus,” Sibal responded. “If they say they did not use Pegasus, then we have other submissions to take. That is not a revelation of any national security secrets.”

“If he (Home Secretary) didn’t know about it, he can file an affidavit. The issue of the committee will come later. Whether the government used Pegasus or not will not reveal any national security. The Ministers statement doesn’t reveal anything about it. Let them say on oath that they don’t want to admit or deny that they use Pegasus. Then the matter gets more serious if you ask me” – Kapil Sibal

Sensationalism, false narrative: “The petitioners are trying to go somewhere else. I have no issues with a fact finding inquiry, then I have to issues. If it is only for sensationalising ?” Mehta said. “The publisher of the report cannot say if the people in the list were under surveillance”…”What was done in the interest of National Security was done. Whether there is any basis, I’m showing my bonafides. Allow us to have a committee of experts in the field. A false narrative has been created. [The Minister’s response] is showing the good faith decision and the response of the government. We have gone as per the statutory regime. If there is any other purpose behind the petitions, I can’t help it.”

“What I’m saying is that all these questions can only be done by technical experts. Then also let a committee examine the technical aspects. This can be authorised. Your lordships can authorise. I’m not saying government officers. I’m saying that government will appoint independent experts.”

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Who will examine procedural issues? Chief Justice of India, NV Ramana pointed out that the experts can only go through technical aspects, and asked about procedural aspects:

“How will the technical committee check what authorizations have been given? What contracts,”…”The issue of permission, sanction, procurement etc, who will examine?” To this Mehta responded that the committee may be allowed to examine procedural aspects. “If you approve us to constitute a committee of experts conferred by judicial order,” Mehta said.  “The committee can go through whether Pegasus was used. You may lay down the terms for reference. Government-appointed committee should be trusted.”

Govindacharya asked to file a fresh petition: Senior Advocate Vikas Singh, representing Govindacharya, who had filed a petition in 2019 on the Pegasus issue, asked for his petition to be restored. To this, senior advocate and former Attorney General of India Mukul Rohatgi, representing WhatsApp, pointing out that this petition had been withdrawn unconditionally, and they had gone to the Parliamentary Standing Committee to examine the issue. CJI Ramana told Singh that a fresh writ petition may be filed in the matter by Govindacharya.

The previous hearings

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, saying that he had received copies from all petitioners, except Yashwant Sinha (represented by Manish Tewari, who responded by saying that a copy had been served to the Union of India). CJI Ramana had said that when the matter is pending in the court, petitioners should have faith in the system, and the matter should be deliberated on in court, and petitioners should avoid parallel debates on Twitter. “We’re not against debates but when the matter is pending in court, it should be deliberated upon here”, he said, adding that “Parties should 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.

Senior Advocate Shyam Divan had sought time till Friday (August 13, 2021) to file additional affidavits.

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Vikas Singh, Advocate appearing for Govindacharya, whose petition regarding Pegasus had been filed in 2019, sought permission to refile and revive the petition.

Advocate ML Sharma mentioned that he had submitted his petition with an amended name for the respondent.

August 5, 2021 [detailed report here]: 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 petiitons. 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

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“As far as I’m concerned, if you see the IT Act, Section 43 allows me to file a suit for damages. Now we’re saying that Pegasus Spyware is used, but it is not known who has used it. Civil remedies are useless. The only (criminal) provision for privacy in the IT Act is about bodily parts. That is not applicable here. I don’t know under which provision I will file an FIR under the IT Act.” – Arvind Datar

“The whole country must be assured that their phones might not be affected like this. I can undestand that in terrorism and big crimes, it has to be as per procedures under the IT Act. Journalists cannot be surveilled like this and their phones and internets cannot be surveilled like this. This is a larger issue involving constitutionalist and not just criminality.” – Rakesh Dwivedi

Also Read

  • 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 here]
  • 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 here]
  • Understanding the efficacy of the proposed Personal Data Protection Bill is crucial in regards to entrenched networked surveillance [Read here]

*

Disclosure: Prof Jagdeep Chhokar is the uncle of the author of this article.

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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