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Pegasus : How Can Expert Committee Examine Issues On Procurement, Sanctions Etc?SC - Read Full Courtroom Exchange

Mehal Jain
16 Aug 2021 2:42 PM GMT
Pegasus : How Can Expert Committee Examine Issues On Procurement, Sanctions Etc?SC - Read Full Courtroom Exchange
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The Supreme Court on Monday resumed hearing on the batch of petitions in connection with the Pegasus controversy.At the outset, Chief Justice N. V. Ramana inquired from all senior advocates appearing in the matter if they have perused the counter-affidavit filed by the UOI- "You must have seen the affidavit of the State, the government of India? They have denied in the first two pages, and in...

The Supreme Court on Monday resumed hearing on the batch of petitions in connection with the Pegasus controversy.

At the outset, Chief Justice N. V. Ramana inquired from all senior advocates appearing in the matter if they have perused the counter-affidavit filed by the UOI- "

You must have seen the affidavit of the State, the government of India? They have denied in the first two pages, and in the last paragraph, they have taken their stand. Why don't you read that paragraph, Mr. SG?"

SG Tushar Mehta proceeded to do as asked, quoting from the affidavit-"All petitions are based on uncorroborated material and media reports...there is nothing in them...This question stands clarified on the floor of the Parliament by the Minister of Railways, Communications, Electronics and Information Technology. In that view of the matter, in the respectful submission of the deponent, nothing further needs to be done. Petitioners have not made out any case. It is however submitted that with a view to dispel any wrong narrative spread by any vested interest and with an object of examining the issue, the Union of India will constitute a committee of experts which will go into all aspects of the issue"

"I am denying every allegation. This issue is essentially a technical issue. It is one for specialized experts", explained the SG

"So all contents in the affidavits have been denied by you? And still you are wanting to clarify the issue by appointing a committee of experts?", the CJ asked the SG to confirm.

"The Hon'ble Minister (Ashwini Vaishnaw) made it very clear that this was a sensational story published by a portal a day before the Parliament was about to sit. He has given all the details. His statement has been recorded in the Parliament proceedings which I have verbatim annexed. The minister's response deals with everything, how this hyperbole has started. This is the stand of the central government on merits. However, there is nothing to hide. There is nothing which needs examination, that is the stand. But nonetheless, this is a highly technical issue. This requires specialised expertise. We will appoint neutral, eminent people of the field and they will go into this question and examine the matter and place it before Your Lordships. I don't think the government can be more transparent and fair than this", replied the SG.

Next, Justice Aniruddha Bose informed the advocates that he has, some time ago, met and had some interaction with 2 of the petitioners at a social function, event or gathering and if any of the advocates have any objections to the judge hearing the matter.

All senior counsel signaled that they have no reservations in this regard. Mr. Mehta advanced, "As far as objection is concerned, only I can have it and I have no objection. Even if Your Lordships had any dispension on the subject, it will have no bearing on the proceedings"

"No, no dispensation. Only at a social gathering, like a marriage, my brother met those people", clarified the CJ. Senior Advocate Mukul Rohatgi appearing for WhatsApp also said, "I don't think anybody has any objection. Your Lordships will be pleased to proceed"

Next, the SG asked if the bench would like him to go through the statement of the Minister on the floor of the House as the bench may not have had the occasion to read it. "There are details that earlier also certain claims were made and they were denied", pressed the SG. "It is okay. You have said you have nothing to do. Also, on the first day of the hearing, some counsel has read out the statement made by the Minister", said the CJ.

Senior Advocate Kapil Sibal for Journalists N Ram and Sashikumar 

Mr. Sibal flagged 3 issues in the short affidavit filed by the Centre- "One, the deponent has submitted, 'I state and submit that due to the limited time at the disposal of the deponent, it is not possible to deal with all the facts stated and the contentions raised in the batch of petitions. I have a strong objection to that for the simple reason that they have to state on oath whether the government of India or any agency of the government of India has ever used the software. If they haven't, then our arguments will have to be different. But once the Secretary to the government of India has to state so on oath. If they have, then our submissions will be different. But this fact must be denied or stated by them- Whether Pegasus was ever used by the government or any of its agencies. And this is what we have alleged in the petitions and they have not responded and they say 'limited time'. They have enough time at their disposal. Your Lordships will give them more time. Allow them as much time as they want to state whether they have ever used Pegasus. This affidavit does not answer the issues raised by us"

"Two, the affidavit reads that 'a bare perusal of the captioned petition and other connected petitions makes it clear that the same are based on conjectures and surmises'. Now, when they say they have not answered the petitions on fact, how can they say that they are all based on conjectures and surmises? They must say how the facts stated in the petition are wrong, that the government of India has nothing to do with Pegasus, that no agency of it has anything to do with it. It is only then we can demonstrate to the court how what the government says on affidavit, if it does say that, is wrong", continued Mr. Sibal.

"Three, we don't want a government that might have used Pegasus, or its agencies might have used Pegasus, to set up a committee of its own. If they say 'Yes, Pegasus was used', we cannot have a committee. If they say Pegasus was not used, there is no need for the committee. So where is the question of the committee coming in? I have these three basic objections to this affidavit and I want Your Lordships to give them enough time to file an affidavit on facts", submitted the senior advocate.

Mr. Sibal advanced that the SG made a statement on behalf of the government that they have nothing to do with it. "In the Editors Guild petition, I read the response of the then-minister of IT in reply to a question raised in 2019– let's read the question- '(a) whether the Government has taken note of the fact that a spyware/malware 'Pegasus' of Israel-based NSO group has reportedly been used to infect/spy/steal mobile phone data of many human rights activists, journalists and other eminent persons of the country; (b) if so, the details thereof, State/UTwise along with the reasons therefor and the reaction of the Government thereto; (c) whether the said breach of privacy has affected many people across the world and if so, the details thereof and the number of Indian citizens affected by this spyware; (d) whether the Government has taken cognizance of the reports of alleged use and purchase of the Pegasus spyware by Government agencies and if so, the details thereof along with the reaction of the Government thereto; (e) whether the Government has asked WhatsApp to explain the aforesaid spyware attack and if so, the details thereof and the response received by the Government thereon'. Now Please see the answer –'Yes, Sir. Government has taken note of the fact that a spyware/malware has affected some Whatsapp users'. So they have knowledge of it! And they have interacted with WhatsApp! They say 'According to WhatsApp, this spyware was developed by an Israel based company NSO Group and that it had developed and used Pegasus spyware to attempt to reach mobile phones of a possible number of 1400 users globally that includes 121 users from India'! So how can my learned friend say that there is nothing. And this happened in 2019! The government has to explain what they have done till 2021! The government must explain what they have done with regard to WhatsApp, steps they have taken, have they lodged an FIR or have they sought prosecution, have they got in touch with Israeli government, have they made complaints to the government? This is why they do not want to respond on facts!"

"This is a very serious situation. Many have said their phones were infiltrated in this fashion. I am not concerned with individuals A, B or C. I am more concerned with institutions. The two institutions which protect democracy are journalists and the court. These are the two pillars of democracy. And both have been infiltrated and in large numbers. The registrars of this court, a lady staffer in this court, her relatives. It is not about Pegasus but institutions, the independence of the only institution in the country which protects the rights of individuals! It cannot be allowed to be penetrated in any manner!", he urged.

Further, Mr. Sibal indicated section 70B of the IT Act which provides for an Indian Computer Emergency Response Team to serve as national agency for incident response- "There is an agency called the CERT-In which deals with this kind of infiltration. The section says that the central government may by notification in the Gazette appoint an agency of the government to be called the Indian Computer Emergency Response Team and this team will serve as the national agency performing the following functions in the area of cyber security– Emergency measures for handling cyber security incidents, Coordination of cyber incidents response activities, Such other functions relating to cyber security. So the field of cyber security is dealt with by CERT-In, an agency of the government"

He indicated that in May, 2019, WhatsApp reported an incident to the CERT-In stating that they had identified and promptly fixed a vulnerability that could enable an attacker to insert and execute code on mobile devices and that the vulnerability can no longer be exploited to carry out attacks. Subsequently, the Ministry of Electronics and Information Technology said that WhatsApp wrote to CERT-In mentioning an update to the security incident reported in May, 2019, that while the full extent of this attack may never be known, WhatsApp continued to review the available information.

"There were media reports that devices of users may have been reached! Subsequent to that, CERT-In issued a formal notice to WhatsApp seeking submission of relevant details and information. All that information must come on record, who was using it, what was that information! They say we don't have time to respond to the fact!", pressed Mr. Sibal.

Further, he indicated Rule 3 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009- "My submission ultimately would be that the home secretary to the government of India has to file an affidavit in this regard. Come to Rule 3- 'No person shall carry out the interception or monitoring or decryption of any information generated, transmitted or received or stored in any computer resource except by an order issued by the competent authority'. The competent authority in the definition is the secretary in the Ministry of Home Affairs in the case of the central government. My problem is that this affidavit is not filed by the Home Secretary, it is by the Additional Secretary in the Ministry of Electronics and IT"

"If interception is allowed, these matters have to be dealt with by the Home Secretary! If there has been an interception legally, then the Home Secretary will have all the information. If the Home Secretary files an affidavit saying I do not know, it means that everything done was outside the law, of which the government of India knew way back in 2019! Other jurisdictions in the world are all taking steps- in US, there is a matter pending, France has begun an investigation at the national level and through court procedure and Israel itself has raided Pegasus and is also conducting an enquiry- but the government of India says everything is fine, there is no issue!", continued Mr. Sibal.

"With the greatest respect to the government, this is totally unacceptable. The matter has ramifications which are far larger than any individual, and I don't want to say anything more, Give them whatever time they want, but let them state on oath whether they used Pegasus or any agency of theirs used it or not, and if they did not use it, what have they done about this issue. If they used it, then under what circumstances and what contract, how much was paid, which agency?! All that needs to come on record", he urged.

He finally concluded, requesting the Court to ask the Cabinet Secretary to file an affidavit.

Senior Advocate Vikas Singh for former RSS Ideologue K.N. GOVINDACHARYA

Former RSS ideologue K. N. Govindacharya has moved the Supreme Court urging it to revive a petition filed by him in 2019 – and later withdrawn – seeking registration of an FIR and a National Investigation Agency (NIA) probe against Facebook, WhatsApp and Pegasus spyware maker NSO Group, over alleged snooping charges.

"You wanted to go before the Parliamentary Committee. Your petition is withdrawn. First of all, we have to allow and restore your application. If we do it, your prayers are different. You want a committee of enquiry by the NIA or CBI. Look at the relief sought- lodging of FIR against WhatsApp and NSO group under IT Act, under IPC. We should initiate proceedings against persons and direct the NIA to conduct an investigation against Pegasus and WhatsApp? This is a different line altogether. Revival of that petition will not serve your purpose. Better we will grant liberty to file a fresh petition if you want to join with the petitioners", the CJ told Mr. Singh.

As Mr. Singh agreed to the suggestion, Mr. Rohatgi, for WhatsApp, raised an objection to the restoration application- "There can be no restoration application after they have withdrawn the case. He has withdrawn it unconditionally to go to the Parliamentary Committee"

"He is entitled to file a petition", pointed out the CJ.

"Let him file. Why will the court give him liberty?", argued Mr. Rohatgi.

"Because the last time in 2019, he was given permission to approach the Committee. Now the Committee has not done anything constructive", said the CJ.

"If he wants to file, he can file. Your Lordships may reject the restoration application. These are only instruments of harassment, that's all! There is nothing else in it!", repeated Mr. Rohatgi.

Senior Advocate Rakesh Dwivedi for SNM Abdi, journalist whose name was in the potential list of Pegasus targets

Mr. Dwivedi began by saying that he is adopting and endorsing everything Mr Sibal has submitted, and that he wished to draw the attention of the Court to the counter-affidavit- "There is nothing in the statement of the minister, which is relied upon, to the end that the government is not using Pegasus, that they have not obtained the facility of Pegasus from NSO and that the various intelligence agencies under the Ministry of Home are not using it. And this is important because the petitioner is a person whose phone is found to be infected and there is a prima facie report of an analysis done by Amnesty. I would have been very happy if the affidavit would have said that the government has not obtained the use of this facility and that it was not used against me. What is important is whether they used it against me or not"

"The other thing I want to add is that this use of Pegasus has to be authorised by some law of Parliament. In Puttaswamy's case, when the scheme of Aadhaar was being examined this court, a five-judge bench went into the entire scheme and having examined the scheme, came to a conclusion that the entire software which was being used was protected and there was no chance of leakage etc, no chance of surveillance. In this case, nothing is indicated in the short affidavit as to under what provision of law was anything done. Because privacy is a fundamental right and it can be breached only if it is supported by law. Which law permitted the government to use it? There is none and there is no mention of it in the affidavit. So it is clear there is no denial, no statement that there is any law supporting the use, there is no statement that they are not using it and there is also no statement that they have not used it against me", continued Mr. Dwivedi.

"I can understand the paucity of time. I join Mr Sibal in saying, 'Give them time, let them go through the affidavits and come back with a response'. It is not required of them to go into all the averments in all the petitions", he said.

As regards the question of formation of a committee, Mr. Dwivedi said there is no occasion for this committee unless the government denies the allegations. "They have not stated who are going to be the members of this committee. The worst case analysis, if the committee at all has to be constituted, it has to be a neutral independent committee and it has to function and make its enquiry and report back to this court. It has to be under the supervision of this court. Once the petitions are pending, it cannot be under the control of the government. All the cases in the petitions are against the government. The government cannot supervise its own nominated committee as it will not enhance any confidence in the public or the petitioners. In the worst case, if at all the committee is to go ahead, the names should be neutral and should be made part of Your Lordships' order and under the supervision and control of this court"

Senior Advocate Shyam Diwan for activist Jagdeep Chhokkar

The CJ pointed out to Mr. Diwan that the first objections to this "limited affidavit" are that the government has not disclosed whether they have used the software and to the route suggested by the government to go ahead with the committee. "Please don't argue on merits", the CJ said.

"I am going much further than that! This is an Article 32 petition and I have fundamental rights which have been violated by the State. This is a matter of tremendous importance. This cannot be dodged by the Union government by filing a skimpy affidavit. Let me show you the structure of my petition. I was surveilled...", began Mr. Diwan

At this, Justice Bose observed, "We don't have any material as yet to establish that the violation has taken place by the State or the Union. That is your allegation on the basis of available materials"

The CJ observed that the Court will ask Mr. Mehta if he wants to file another affidavit, and if he does, the Court will give him time for the same, and then the problem is solved and Mr. Diwan need not "strain" himself. "If he says 'we don't want to file anything more, this is all the affidavit we want to file', then you can have your argument", said the CJ.

"There has been a development since the last hearing. We have filed an additional affidavit of the petitioner because Your Lordships had put questions to us regarding if we had lodged FIR etc. There is a second affidavit by Professor Sandeep K. Shukla who is the paramount authority in India on cyber security...", said Mr. Diwan

Justice Surya Kant said the bench has read the affidavits, and that the petitioner has suggested 2 names, besides Mr Shukla, of persons of technical prowess.

"Then Your Lordships will realise the importance of what we have said on oath", told Mr. Diwan.

"In my additional affidavit, I have given three judgments of this court where, having regard to the magnitude of the issue, this court has requested the Cabinet Secretary (to respond). At this point, this is all I will say", he stated.

Senior Advocate Meenakshi Arora appearing for MP John Brittas

"I completely concur with Mr Sibal and Mr Dwivedi. The affidavit of the Union is delightfully noncommittal. I have gone through the statement made in the Parliament, I have seen what is stated in the affidavit. Neither the minister commits to anything- whether it has been carried out or it has not happened- nor does the affidavit say anything. Most of the petitioners say that they want a Special Investigating Team to carry out an inquiry. But the government does not even pick an onus, one way or the other! Certain other jurisdictions including judicial jurisdictions, like US and France, have taken note that there has been an effect of Pegasus, an intrusion into privacy!", advanced Ms. Arora.

Justice Bose asked her to please listen to the bench on the course they are proposing to adopt.

Senior Advocate Dinesh Dwivedi

Mr. Dwivedi also intervened to point out one additional factor in the context of what he has pleaded in the petition- "My phone has been found to have traces of Pegasus. It was forensically examined and the report was positive"

"Kindly give us a moment", repeated Justice Bose. "We are asking questions of the SG. Please wait", added the CJ.

SG Tushar Mehta

'Do you want to file a detailed affidavit?", CJ asks SG

"The sum and substance of the submissions is that the limited affidavit which was filed has not satisfied the petitioners as regards allegation about whether the government has at all used the software or not, or otherwise if somebody used it, have you given any permission. So unless you furnish this information, they are unable to go ahead with the arguments, particularly with regard to the expert committee. You said that because of a shortage of time, you were unable to do it. If you want to file a detailed affidavit of some kind, there is no problem. We can give you some time and you can decide the scope of the committee and what to do and all that, it is for you", the CJ put to the SG.

"Your Lordships may give me some time to respond and put the facts in a proper perspective because doubtlessly, we are dealing with a matter which is a sensitive matter. But the attempt here appears to be to make it sensational. My affidavit says that since I have not dealt with the petition paragraph-wise, don't think that I have admitted to anything", responded the SG.

He requested the bench to come to the statement given by the IT Minister in the House, which is reproduced in the affidavit, to indicate that the fact that the cabinet secretary is the competent authority is pointed out on the floor of the House itself. He read from the statement the following excerpt- "Hon'ble Speaker sir, let's look at India's established protocol when it comes to surveillance. The members of the Opposition would be well aware of this protocol as they have been in the government for years. Since they have governed the country, they would also be aware that any form of illegal surveillance is not possible because of checks and balances in our law and the robust system. In India, there is a well established procedure through which lawful interception of electronic communication is carried out for the purpose of national security, particularly on the occurrence of any public emergency or in the interest of public safety, by agencies of the Centre and the states. The request for these lawful interception of electronic communications are made as per relevant rules under the provisions of section 5(2) of the Telegraph Act and section 69 of the Information Technology Act. Each case of interception and monitoring is approved by the competent authority. These powers are available to the competent authority in the state government as per the 2009 IT Rules (which Mr. Sibal had indicated). There is an established oversight mechanism in the form of a review committee headed by the Union cabinet secretary. In case of state governments, such cases are reviewed by the committee headed by the chief secretary concerned. The law also provides the adjudication process for those adversely affected. The procedure therefore ensures that any interception or monitoring of any information is done as per due process of law. The framework has stood the test of time"

The SG continued to submit that should the bench be convinced that the issue needs to be gone into, there will be issues of national security. "I am saying this as an officer of the court, not as a representative of the government, that the matter cannot be as simple that you file an affidavit whether Pegasus was used or not, purchased or not. That cannot be the medium through which Your Lordships' process can be invoked. The Hon'ble Minister who is concerned with the Department with which this issue is associated has given the details of how this Pegasus issue has been raging fires in the last few years. Any answer, any discussion, any facts being placed would necessarily involve a national security concern.There are official interceptions which take place as per law, as permitted by law, as procedure prescribed by the competent authority which is statutorily empowered", told the SG.

"Whatever you want to say, why don't you put it in affidavit form? We will also get clarity for the future- what to do, how to go about it?", asked the CJ.

"I am just posing a question to myself. Even if I filed this one-page affidavit that Pegasus was never used, will they withdraw the petitions? The matter will have to be examined, it will have to be gone into. If Your Lordships are convinced that it needs to be gone into, then I am ready to appoint a committee of experts", said the SG.

"You are saying you need not pick a stand on the issue?", asked CJ.

"The stand is taken in the Parliament. Possibly, the petitioners are trying to go somewhere else than where Your Lordships intend the proceedings to go. If it is a fact-finding enquiry, I have no difficulty and I am fully supporting it. If it is only for sensationalising or something which is alien to the object of 32, then I can't help it", replied the SG.

"You will set up the expert committee for what purpose?", asked the CJ.

The SG then drew the attention of the bench to the statement of the IT Minister in the Parliament on the Pegasus issue, urging the House to examine what NSO, the company which owns the technology, has said.

"The Minister had indicated the response by NSO, in which it called the 50,000 number (of potential targets) "exaggerated" and said it was far too large to represent numbers targeted by its clients. The NSO said that it had reason to believe that the media consortium 'Pegasus Project' was basing its findings "on misleading interpretation of leaked data from accessible and overt basic information, such as HLR Lookup services, which have no bearing on the list of the customers targets of Pegasus or any other NSO products" and that it does see any correlation of these lists to anything related to use of NSO Group technologies. The Minister had indicated that the NSA has also said that the list of countries shown using Pegasus is incorrect and many countries mentioned are not even its clients, and that it also said that most of its clients are western countries. "It is evident that NSO has also clearly rubbished the claims in the report", the Minister had said.

The SG continued to submit,

"There is a statutory provision in place, there are rules, committees are there, review committees are in place, and that is how whatever interception was done, possibly for national security, is done. Whether the names are correct or whether there is any basis, it needs to be gone into. I am showing my bona fides. Allow us to have a committee of experts, let them go into it- whether at all something has been done, whether the Centre has done something or whether a state government has done, who has done.This is, on the contrary, showing the good faith decision or response of the government. According to us, a false narrative, which is created, is the ground on which the country is debating. We have made it clear before the Parliament that we have gone as per the statutory regime. If there is any other purpose behind the petitions of which I am not aware, I can't help"

"What you are reading from the statement of the minister is based on what NSO has said. But here, we have the petitioners. The second statement of the minister is with regard to some official protocol being followed. Whether protocol has been followed or not, that is the domain of the Cabinet Secretary under the Rules. Affidavit on facts can be filed by them. If they don't want to file, then the question of constitutionality would arise", observed Justice Surya Kant.

"All these questions can only be gone into by technical experts. If the petitioners withdraw by my filing an affidavit saying 'no', I have no difficulty. Let them say they will withdraw. Otherwise, then also they will say whether the 'no' is right or wrong needs to be examined by some committee", replied the SG.

"How will a technical committee examine the questions of permissions by authorities?", asked the CJ.

"They can be authorised by the court. Mr Dwivedi said that a government committee may not be permissible. I am not saying the committee will have government officers. I am saying the government will appoint a committee of neutral, independent experts", said the SG.

"The experts can go into the angle of whether particular software was used or not in a phone. Only to that extent they can go. The other issue regarding procurement, non-procurement, sanctions, permissions, which agency, state or otherwise, has to be examined by somebody. Who will do that?", asked the CJ.

"Let the experts examine that also. Your Lordships will confer them with the jurisdiction. There is nothing to hide. Please accept the bona fide gesture of the government. I have no difficulty", repeated the SG.

"We are not saying anything against the government. That is not the issue. The issue is that there are areas where the technical committee cannot go. These are issues which have to be seen by somebody else", observed the CJ.

"Under 32, Your Lordships can confer the committee with whatever terms of reference you would want to incorporate. They would be carrying the mandate of the Court then!", urged the SG.

"The committee may go into whether any such device was used, maybe by the Centre. by the state or by the private party. Your Lordships may lay down the terms of reference of the committee. I differ with Mr Dwivedi that a government appointed committee will not be trusted. According to me, it should be trusted. That is all I can say. Everybody who says my phone was intercepted are basing their argument on all those reports by some headquarters that A was also in the list, B was also in the list, C was also in the list", continued the SG.

As a sideline, he proceeded to say that the IT Act is a beautiful piece of legislation.

"Incidentally, it was made during Mr Sibal's tenure. Unfortunately, there was a section 66A. Mr Diwan's client challenged it. I defended it before Justice Nariman. There is a reported judgement (Shreya Singhal v. UOI; 2015). Otherwise, it is a comprehensive Act, taking care of every situation. You cannot go beyond it"

At this, Mr. Sibal interjected to submit,

"All that we want from the government is whether they or any of their agencies used Pegasus. There is no national security issue there, there is no revelation there. It is just a statement of fact. If they did not use it, that puts an end to this controversy"

"Will all of you withdraw the petition then?", asked the SG.

"I will tell you something about beauty, beauty over the years is no longer beautiful. It might be a beautiful statute but over the years it has lost its beauty by the way you are using it. So let's not talk about beauty. If they say they did not use Pegasus, then we will have other submissions to make. If they say they did use it, then the question is whether the use was through the home secretary or outside. That is not a revelation of any security secret, it does not endanger our security", replied Mr. Sibal.

"Pegasus is a technology which enters your phone through a vector, it will not go through the Home Secretary. So the question is whether the Pegasus was used by the government, any agency and if the Home Secretary knew about it. If he doesn't, he will say on affidavit that I don't know anything about it. Issue of the committee, what should be done, what should not be done, will be gone into later. Let them file an affidavit as to whether the government or its agency never used Pegasus. That will not reveal any national secret. That is all we want for the moment. He is relying on a statement by a minister that says nothing about it. The statement has to be made by home secretary on oath before Your Lordships", stressed Mr. Sibal.

"When the government is reluctant, they say we have filed this and we don't want to file anything more, how can we compel them?", asked the CJ.

"I am not reluctant. I am only saying even if I did so, the petition would continue for other reasons", advanced the SG.

"Let them say on oath that they don't want to say anything. Give them another opportunity. Then we can argue other issues. We just want to clarify if they don't want to admit or they don't want to deny the use of Pegasus. We have no problem with that also. I can also argue then that they have not denied it. Then the matter gets more serious, if you ask me", continued Mr. Sibal

Justice Surya Kant asked Mr Mehta to come to the affidavit that they have filed. "It reads 'I am therefore filing this limited affidavit at this stage by reserving liberty to file a further response'. It is by a responsible officer so we will presume you have more to say", the judge indicated.

"That is a routine sentence. 'If need be', the liberty to respond more is always reserved. Your Lordships are aware there is a format", replied the SG.

The CJ then addressed Mr. Diwan- "We had said that in case the SG admits he will file an affidavit, there is no need for you to spend any time. Now it seems he does not want to"

"My take is that even if I file an affidavit, Your Lordships' time will be wasted", urged the SG.

"I am not compelling you to file one", said the CJ.

"There is no reluctance on our part in filing one. If they are withdrawing, I have no difficulty. I am saying the truth must come out", said the SG

"We will continue tomorrow. You also take instructions, if you have any change of mind...This the simple issue of filing the affidavit or not", observed the CJ, the bench rising.

Adjourning the hearing to Tuesday, the CJ clarified, "We are confining ourselves to the issue of whether there should be an affidavit or not."

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