Pegasus case: LIVE UPDATES from Supreme Court

The Supreme Court of India will resume hearing today a batch of petitions seeking various prayers including a court-monitored probe, a judicial inquiry and directions to the government to reveal details about whether it had used the Pegasus software to spy on citizens..A Bench led by Chief Justice of India NV Ramana is hearing the case..On August 17, the Court had issued notice to the Centre in the pleas after the Union submitted that it was willing to give details regarding the controversy to an expert committee, but not make it public before the Court for fear of national security implications. The matter was set to come up on 7 September, however was adjourned on the request of the Solicitor General. .Read a complete account of the previous proceedings here..Senior Advocate Kapil Sibal: SG Tushar Mehta had to make a statement .SG Tushar Mehta: We have considered. there are pleas before you which seeks inquiry into the issue of unauthorised interception.SG Mehta: We had already said that as per telegraph act and IT Act and Rules, there has been no unauthorised interception and only as per Section 69 of the Act. The issue is important. Therefore, we have placed an affidavit that we will constitute a committee of domain experts..CJI NV Ramana: Last time we wanted to have an affidavit and now you are saying this. SG: This committee will not have government members..SG: Such issues of whether centre was using Pegasus or not cannot be debated in affidavits and can be looked into by domain experts. Section 69 does provide interceptions by which terror funding and terror links etc have been unearthed. .SG: Whether it has been done by A software or B Software cannot be said on affidavit. Domain experts unconnected with govt. will be looking it and we will place all before them..SG: Which software was used and which software not used cannot be on affidavit but it will be before the experts, stating such things have its own pitfalls and should not become a part of public discourse. This is interest of nation and security of nation..Justice Surya Kant: When the matter came up a few days back and national security arose, we said that no one is interested to disclose anything which comprises internal or external national integrity. Its sensitive and we are concerned..Supreme Court: We were only expecting a limited affidavit since there are petitioners before us who say their rights have been infringed by A or B agency. You had to say whether its done lawfully or unlawfully..Supreme Court: Details needed was other agency was involved to spy on them...then, measures could be taken. National security is not a part of present proceedings. .CJI NV Ramana: We are not interested to know about national interest issues but we are only on the face of allegations some software was used to snoop certain citizens like lawyers etc. We wanted to know if its done to see if its permissible under law..SG Tushar Mehta reads the IT minister's statement made in parliament. The statement read as, "publication of stories before monsoon session cannot be a coincidence."."NSO had stated most of the countries on the database were not even its clients": SG Mehta continues to read from the statement of the IT Minister..SG: I am not averse to certain individuals claiming invasion of privacy. This is serious and must be got into. The question is whether its Pegasus or something. Our stand is putting this into affidavit will not serve national interest..SG: Hence, allow us to form a committee of domain experts without govt members..CJI Ramana: We are going back to again and again, we are not interested to know what you are doing to protect interest of the country, etc etc. Your minister admitted that govt had taken note of software being used..SG: Minister says he heard about such software dismissed it..CJI Ramana: Appointing a committee or making inquiry is not the question here. If you file an affidavit then we know where you stand. As per your minister's statement..."such services are openly available to anyone, anytime.." .SG: No, this is by the NSO group...CJI Ramana: There is a procedure established under law which allows interception too... We had to have your affidavit to understand where you stand.. We don't want to say anything further. There are three steps in the minister's statement: it requires probe, it can be used by anybody and if it's used by government then it's as per the procedure established by law..Sr. Adv. Kapil Sibal: I am ready to argue the full matter.CJI Ramana: We had given fair opportunity to centre to make a statement. Now they don't want to file affidavit. So we will pass an order like that... what to do..Sr. Adv. Sibal refers to Ram Jethmalani vs Union of India (2011 judgment)."By history and tradition of common law, judicial proceedings are substantively, though not necessarily fully, adversarial, both parties bear the responsibility of placing all the relevant..".Sibal reads from the judgment: "information, analyses, and facts before this court as completely as possible. In most situations, it is the State which may have more comprehensive information that is relevant to the matters at hand in such proceedings...".Sibal reads from the judgment: "Some agents of the State may perceive that because these proceedings are adversarial in nature, the duty and burden to furnish all the necessary information rests upon the Petitioners...".Sibal reads judgment: "And hence the State has no obligation to fully furnish such information. Some agents of the State may also seek to cast the events and facts in a light that is favourable to the government in the immediate context of the proceedings..".Sibal reads judgment: "Even though such actions do not lead to rendering of complete justice in the task of protection of fundamental rights. To that extent, both the petitioners and this Court would be handicapped in proceedings under Clause (1) of Article 32..".Sibal: Here when it is about Fundamental Rights, centre cannot be an adversary and state has to reveal all the facts and provide all information to petitioner..Sibal reads from judgment: "because the petitioners would also then be enabled to bring to light facts and the law that may be relevant for the Court in rendering its decision. In proceedings such as those under Article 32...".Sibal reads from judgment: "...both the petitioner and the State, have to necessarily be the eyes and ears of the Court. Blinding the petitioner would substantially detract from the integrity of the process of judicial decision making in Article 32 proceedings...".Sibal reads from judgment: "...especially where the issue is of upholding of fundamental rights.".Sibal: All we wanted to know, was Pegasus used and they say it is detrimental to national interest but it is only detrimental to justice!.Sibal: If Pegasus was used and targets were ordinary citizen then it is serious. This software is illegal and cannot be used. Mind you My Lords. This is what IT minister said they accepted indeed it was used..Sibal: Centre would have taken action against NSO and Pegasus. Have they lodged an FIR? Have they tried to find out the truth? Central emergency response team could have looked into it. UNBELIEVABLE THAT CENTRE SAYS I WILL NOT TELL THE COURT!.Sr. Adv. Sibal reads the answer given by then law minister in 2019: He was asked if he knows about Pegasus was used to infect the phones... He said .. Yes sir, govt has taken note of some spyware has infected phones.... 120 mobile users were in India. This is an admission My Lord..Sibal: Govt. cannot say shut your eyes to Court and we will do what we want.SG Mehta: Please don't put words in my mouth.Sibal: That's exactly what it means..Sibal refers to the Indian Computer Emergency Response Team And Manner Of Performing Functions And Duties) Rules, 2013. .Sibal: That is why we mention that this is being done through Pegasus and our rights are being infringed. The rules cover response to cyber security incident. Do we have this report? Do we have the security audit report.. this is rule 10..Sibal: International agencies have accepted the fact that Indians were impacted and the names have been given in this case.Yesterday Germany also accepted that Pegasus was used to counter terror etc..Sibal: It is our allegation that govt wants to hide facts. Remember the Hawala case where Supreme Court formed a committee of sitting judges and proceedings were conducted in chambers to safeguard national interest issues..Sibal: Why should government be allowed to form a committee of its own? It should be completely away from govt. control..Senior Advocate Shyam Divan appears for Jagdeep Chhokar..CJI Ramana: We thought centre will file counter, depending on that we thought we will go ahead. Only issue is the interim orders to be passed. Please say what you have to say apart from Mr. Sibal's point, we are not disposing off final plea..Divan: We have included cases where it has been said that only a cabinet secretary could file an affidavit in a case like this as invasion of privacy can be by a govt. functionary or external agency. As top most bureaucrat, he takes stock of all departments..Divan: While it is correct that in realm of parliament of course a statement will be correct but in court its the rule of pleadings and thus, affidavit becomes very important. We have also filed four expert affidavits. .Divan: The point made by Anand V who has also submitted affidavits before courts in Kenya etc, he is a qualified privacy and security researcher..Divan: We have filed an affidavit also by Sandeep Shukla. He has conducted lab experiments on Pegasus, he sets out exactly what has happened here. He concludes that Pegasus can spy on each and every info including intimate pictures and personally identifiable info..Divan: These experiments were conducted to show how Pegasus affects after the 2019 impact. He said zero click vulnerability shows the victim does not have to take any action and yet be infected... .CJI Ramana: We know it will be introduced silently without consent.. We know...Divan: Anand V says Pegasus is not only surveillance mechanism but also an implant mechanism which can be used to implant false data. This is beyond IT or Telegraph Act. If this happening, centre has to be vitally concerned. If its by govt., then it cannot be done.Divan: This is a complete assault on democracy and hence, we say please grant our interlocutory prayers. We request cabinet secretary file an affidavit. We have filed an additional affidavit here which has various decisions..Senior Advocate Rakesh Dwivedi refers to Order VIII Rule 3 of Civil Procedure Code. Dwivedi: The denials are totally non-specific denials in this case, My Lord..Dwivedi: It is said defendant must deal with each allegation made in which he specifically denies the truth of it. If not done, then it shall be taken to be admitted as against the defendant..Dwivedi: Centre says it is not possible to deal with each point of fact in petitions and then they say it is unequivocally stated that all statements are false. This all is completely non-specific denials..Dwivedi: I appear for a journalist whose phone was snooped and it was accepted too. This was not denied..Dwivedi now refers to the transparency report submitted by NSO group. Dwivedi: this is NSO's own admission that they are well known for Pegasus software used by states to collect information from phones of criminals. However, NSO says they does not control software..Dwivedi: NSO has clarified that they have no control over who is snooped or possess data regarding the same. Petitioner is a journalist and if there is snooping, privacy and expression gets affected. This right is recognised in three judgments..CJI Ramana: In what purpose is this being cited? Dwivedi: To show the chilling effect on me..Dwivedi: If centre does not want to file an affidavit then there would be a presumption that prima facie our submissions are correct. Please accept our prayer of forming a committee..SG Mehta: We have already said that we will form a committee... Dwivedi: This is about credibility..Dwivedi: Centre is refusing to file an affidavit and not even a para that Pegaus was not used. Then, Law Minister rubbished the entire claim and now a committee is being suggested. This inquiry will be about credibility and govt. cannot constitute the committee..Dwivedi: Your Lordships should constitute the committee..Senior Advocate Meenakshi Arora: There must be SIT here so that a retired Judge of this court heads the same..Senior Advocate Colin Gonalves: I appear for Freedom Law Centre and a journalist from Chhattisgarh. The scribe being poor still has the phone with him. Centre is engaging widespread surveillance since long, long time..SG Mehta: These pleas create a lot of doubt..CJI Ramana: We are considering what interim orders can be passed here. .Gonsalves: Its 20 pages report, RTI replies and statement by the Home Secretary that India is engaged in widespread surveillance. This is submitted to show how centre and state is engaged in surveillance..Gonsalves: Please look at retired or sitting judges of the Supreme Court to look into the same. CJI Ramana: Mr. Mehta, please think and argue the matter...Advocate ML Sharma: It was said that plea is based on newspaper reports, it was by your colleague Judge... I forget the name..CJI Ramana: This is how you refer to His Lordship... You are practicing in this court!SG Mehta: You cannot say like this..Sharma: I was asked why I am a year late to file this.CJI Ramana: You want to start all this again. Sharma: My prayer is different. CJI Ramana: Then we will detag the case? If you are pursuing in parliament, you can go there..Justice Surya Kant: Today we did not make any comment that you are late or anything of that sort...Sharma: It has been established that once Pegasus is in the phone then any data can be tampered with and this can impact probe by investigation agencies. Evidence can be manufactured..CJI Ramana: Is it your case that the government has implanted any document in your device? Is it your case that the govt. has used malware against you?.ML Sharma: Suddenly you have given me opportunity to argue. CJI Ramana: Suddenly? You were here from morning Mr Sharma. Sharma: I was under impression, I will not get opportunity to argue today..SG Mehta: My case is simple, there is statutory regime is in place. Interception is itself not in doubt. Every technology has its own side effects or ill effects. We are saying let all this technical issues be gone into by domain experts..SG Mehta: There is no point of doubting the govt. appointed committee because, (1) no person will have any relation to govt., (2) the report will be submitted to court. I am saying, let experts see and a report be submitted..SG Mehta: A facade has been created that govt. is not telling the truth, but its not like that.. We are saying let this be gone into since its about privacy of individuals. We cannot have a committee which cannot withstand judicial scrutiny..SG Mehta: The insistence that it must come in public domain has ill effects. If i say I don't use this software then it will alert terror groups and every technology has a counter technology to protect them from security agencies..Judges take a moment to discuss..CJI Ramana: You have repeatedly said that you don't want to put anything in affidavit. We also don't want security issues to be put here. Presumably a committee has been formed and then the report will be submitted here. Now, we have to look into whole issue and decide something..CJI Ramana: Mr. Mehta, beating around the issue is not the question here.SG Mehta: I am saying let this be gone into under your supervision.CJI Ramana: Let us see what to do..Senior Advocate Harish Salve appears for petitioner challenging the Justice MB Lokur headed inquiry panel by West Bengal govt. on Pegasus..CJI Ramana says the plea will be heard on the next day after some orders are passed on main matter..[BREAKING] CJI Ramana: We reserve orders. This is for interim orders. You have two-three days, Mr. Mehta. If you have any rethinking, you can mention before this court.

Pegasus case: LIVE UPDATES from Supreme Court

Related Stories