13 Sep 2021 11:06 AM GMT
The Centre on Monday told the Supreme Court that it has nothing more to say on the Pegasus issue than what has been said by its first and only affidavit (described as "limited" by the court)- that it does not deem it appropriate to state whether any particular software was employed or not, that there has been no illegal interception, and that it is willing to quell the concerns of the...
The Centre on Monday told the Supreme Court that it has nothing more to say on the Pegasus issue than what has been said by its first and only affidavit (described as "limited" by the court)- that it does not deem it appropriate to state whether any particular software was employed or not, that there has been no illegal interception, and that it is willing to quell the concerns of the petitioners by constituting an expert inquiry committee.
"We have considered it and the position is like this- there are petitions before Your Lordships which seek an enquiry into the issue because, according to them, there has been some unauthorised interception. I have already filed an affidavit stating that, as per statutory regime available in India in the Telegraph Act and Information Technology Act in general and section 69 of the Information Technology Act in particular and the rules framed thereunder, whatever actions are taken are in accordance with this regime", began SG Tushar Mehta.
"That is my case. That is what the central government, as a responsible body, informed the Parliament as well. Nonetheless, the issue is important and it is before Your Lordships. Therefore, I have placed one affidavit, showing my willingness that we will constitute a committee of domain experts, who will not be connected to the government, to inquire into the issue", he continued.
CJ N. V. Ramana pointed out that the reason why the government was given time on the last occasion was to enable them to introspect if they wanted to file another affidavit.
"Last time, the petitioners were insisting that the central government should make a statement on affidavit whether they are using a particular software or not. Having considered the matter, it is the feeling of the government that such issues can't be debated or placed on affidavits. It must be gone into by domain experts and the report will be before Your Lordships, which would contain everything. Section 69 permits interception for combating terrorism, terror groups, illegal terror funding, drugs, violence etc. There are several statutory stipulations provided for the same. Whether it is done through 'A' software or 'B' software, we feel it is not a subject matter of debate or an affidavit.""Nonetheless, we have nothing to hide and to remove any doubt, we will, on our own saying, constitute a committee of domain experts unconnected by the government- government servants or not even remotely connected to the government- they will go into these questions. Some of the petitioners say their numbers were also intercepted. They can provide their numbers and that can be gone into. Then the report will come before Your Lordships. Everything will be absolutely fair and transparent. The central government's take is that the insistence whether a particular software was used or not may not be subject matter of public debate. It has its own pitfalls- there are targeted groups, terror groups- they better not know which software is being used to combat their activities", repeated the SG.
"Last time, the petitioners were insisting that the central government should make a statement on affidavit whether they are using a particular software or not. Having considered the matter, it is the feeling of the government that such issues can't be debated or placed on affidavits. It must be gone into by domain experts and the report will be before Your Lordships, which would contain everything. Section 69 permits interception for combating terrorism, terror groups, illegal terror funding, drugs, violence etc. There are several statutory stipulations provided for the same. Whether it is done through 'A' software or 'B' software, we feel it is not a subject matter of debate or an affidavit."
"Nonetheless, we have nothing to hide and to remove any doubt, we will, on our own saying, constitute a committee of domain experts unconnected by the government- government servants or not even remotely connected to the government- they will go into these questions. Some of the petitioners say their numbers were also intercepted. They can provide their numbers and that can be gone into. Then the report will come before Your Lordships. Everything will be absolutely fair and transparent. The central government's take is that the insistence whether a particular software was used or not may not be subject matter of public debate. It has its own pitfalls- there are targeted groups, terror groups- they better not know which software is being used to combat their activities", repeated the SG.
"So it cannot be the subject matter of any proceedings whether a software was used or not?", the CJ inquired from the SG.
"It may be a subject matter of the writ petitions. The committee will go into it and place it before you. But it cannot be a part of public discourse. That is why we don't wish to place it on record in the larger national interest, in the interest of the security of the nation", replied the SG.
At this, Justice Surya Kant observed:
"The question of national security arose at the previous date also. We clearly said that nobody is interested in the disclosure of anything, in court or on any other platform, which may tend to raise an issue of national integrity or national security, whether external or internal. That is a very sensitive issue. And we are all concerned about it. The only limited affidavit that we expected you to file was that- there are citizens who are before us alleging the violation of the right to privacy under Article 21, and if you can clarify in your affidavit that these rights are not been violated, and if those have been violated, whether there is permission by the requisite agency, or if there is no permission, has it been done by an outside agency. That it is your concern also and everybody's concern also- if outside agencies are to snoop, interfere, spy into private phones. We are only on the limited class of citizenry who are alleging the violation of the right to privacy. National security, we will definitely keep in mind that it cannot be subject matter of the present proceedings"
The SG agreed that the same national security concerns were acknowledged by the bench and even the petitioners' counsel at the previous hearing.
'Your Own Minister Said Government Has Taken Note Of Spyware Affecting Some Users In 2019'- CJ
CJ Ramana noted, "We are again reiterating that we are not interested in any manner or in any way to know the issues which are concerned about the security or the defence or any other national interest issue. We are only concerned, in the face of allegations that some software was used against some particular citizens, journalists, lawyers etc, to know whether this software has been used by the government, by any method other than permissible under the law."
The CJ indicated that the court is attempting to incite a response from the government taking into consideration the statement of the then-law and IT minister in the Parliament in November, 2019, conceding that "this government has taken note of the fact that a spyware/malware has affected some WhatsApp users" and that "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."
"This is some previous statement", advanced the SG, taking the bench through the July, 2021 statement of the incumbent IT Minister. The SG read out Minister Ashwini Vaishnaw's statement on "Alleged use of spyware Pegasus to compromise phone data of some persons as reported in Media on 18th July 2021", where the Minister says that the publisher of the report states that it cannot say if the numbers in the published list were under surveillance, that the company whose technology was allegedly used has denied these claims outrightly, and the time tested processes in our country are well-established to ensure that unauthorised surveillance does not occur.
"I should be serious about it if there are some individuals before the Court saying there has been an invasion of their privacy. The government takes it seriously. It must be taken seriously and it is being taken seriously. For this purpose, the government has suggested the formation of a committee. At the last hearing, the question was whether Pegasus was used or any other software was used. The decision is that making this a part of an affidavit or public discourse would not be in the national interest. However, Your Lordships must look into it and therefore, allow the government to constitute a committee of domain experts independent of the government, who will go into each of these alleged violations of privacy. The petitioners can also give their mobile numbers and instruments for this exercise and the committee will file a report before the court. Your Lordships would have everything. This is better, rather than divulging which software was used", stressed the SG.
'We Are Sorry To Say That You Are Going Back Again And Again; We Had Clarified That We Want Nothing On National Security, We Are Only On Petitioner'- CJ
At this, the CJ commented, "We are sorry to say that you are going back again and again and again, as if you want to put everything under what the government is doing. Our limited concern is that of the petitioners. That is a limited interest. We are not interested in knowing what you are doing to protect the interest of the country etc. This is a serious allegation. Some software was used in the phone and it affected the privacy of the person. The minister also admitted in the Parliament that the government has taken note of the use of the software- by whom, we don't know..."
The SG sought to clarify that the minister only says that 'we have heard about the news, the news has no basis'. "However, on affidavit, we now say that we will examine. Nobody says we will not examine", repeated the SG.
The CJ reflected,
"Appointing of committee, appointing of enquiry is no issue. The purpose of the affidavit, as we thought, was that we would know where we stand if you file an affidavit. That is all. There are different issues- One, according to your own minister's statement that you have read, without being subject to technical analysis, it is not possible to say if some spyware was used. The technicians have to look into it. Two, the minister's statement also reads that 'Such services are openly available to anyone, anywhere, and anytime, and are commonly used by governmental agencies as well as by private companies worldwide'..."
The SG clarified that the same is not of the minister's own saying but a quotation of the statement NSO group.
"Whatever. Alright, it is their statement, but it does say that the technology can be used by anybody...Thirdly, the minister says that '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 at the Centre and States'...These are the three issues that we had thought that if we got some sort of affidavit, we would know where we stand...", continued the CJ.
The SG advanced that as far as the technical analysis is concerned, the committee will go into it and the court could let them have the instruments (mobiles etc)
'We Have To Examine 3 Issue- Matter Needs Technical Analysis; Technology Can Be Used Anywhere, By Anyone; There Is Established Protocol For Interception'- CJ
"As per what the minister's statement says, what we understand is that reading it as a whole, one, the issue requires examination and technical analysis; two, it could be used by anybody- the government and private parties; and thirdly, that if it is by the government, the procedure established by law has to be followed. We have to examine the material placed before us on three issues", summarised the CJ.
Then the bench proceeded to hear the battering of senior counsel for the petitioners.
In his rejoinder, the SG submitted,
"I would only want to place the matter in its right perspective. Please keep the issue aside for the time being. The assertions (made by the petitioners in their turn) that the government is denying protection to the citizens, the government is not answering, going to the extent of there being an assault on democracy. Please understand my limitations. The government cannot afford to sensationalise issues. There would be a marginal line of distinction between protecting the privacy of the citizens, which is the priority of the government, and entering into a zone where it may not be advisable for me to travel without compromising national security. My endeavour is to make submissions without sensationalising the issue, which prima facie appears to be the end product, whether it may or may not be the intention. The petitioners are annexing affidavits of experts saying that it is a very dangerous technology...It is a dangerous technology. All technologies have their ill-effects, side-effects. They can be used and abused. That would not lead us anywhere"
Continuing, the SG advanced,
"There is the statutory regime in place, interception per se is not an illegal activity. The government's commitment to the court becomes very, very apparent only from the fact that we are saying let all these technical issues be gone into by a committee of domain experts to find out whether the petitioners are right or wrong. There is no question of doubting the credibility of the government-appointed committee for two reasons- one, it is the assurance by me to the court that domain experts would have no relationship to the government, direct or indirect or any employment relationship. Number two, their report would ultimately come before Your Lordships. The distinction between the petitioners' perception and our perception is that I have no issue in these questions being gone into, while they want the same to be in public domain by way of affidavit"
"I am saying instead of putting it in the public domain, let experts go into it and place it before Your Lordships. Nobody is denying or disputing that. That is how the facade is created that the government is not telling you the truth. That is the only distinction between me and them. They say the government is hiding something. We have nothing to hide. There are sensitive issues involved! It is necessary that certain things are not placed in the public record by way of an affidavit! For respecting the privacy of individuals, the government itself is offering to let it be gone into. The report will come before you, the committee will be answerable to you, that is the credibility! We cannot afford to have a committee which cannot withstand Your Lordships' judicial scrutiny!", pressed the SG.
"I don't have the luxury of writing one-sided technical reports, preconceived written reports of some lab etc! We must go into the core issues. The core issue is the prayer before Your Lordships, for which I am, on affidavit, saying that let it be gone into. The insistence that it must come in public domain- please appreciate the harm it may cost. Suppose I say that this particular software I am not using, it would alert all potential targets- terror groups etc. If I say I am using, there would be different consequences. The court is aware that every technology has a counter technology to protect their system from being examined by the security agencies. Instead of insisting that everything must come in public domain by affidavit, I am only saying let an expert go to it and place it before the court", the SG vehemently stressed.
Finally, the CJ noted, "You are repeatedly saying that you don't want to put everything in the public domain. We had made it very clear on the last occasion that we are also not interested in it either. The other counsel is also not interested. Anything which is concerning the safety or interest of the country, we won't agree to it even if the other counsel were to insist. The question is- even assuming for a minute that suppose the expert committee is appointed, the committee also has to examine all these issues and the report has to come before us. It may be shared with the other counsel. Obviously, it will come before the public domain..."
"If Your Lordships feel it can come, then it may. I am not saying whether it should or should not", said the SG.
The CJ continued, "We thought if something comes to us, we can at least take a call as to what type of enquiry we can order. Now we have to look at the whole issue and decide what to do. Beating around the bush is not the issue..."
The SG added, "I am only on the point. Suppose I say we don't use Pegasus, will they withdraw the petition? The answer is clear- someone will have to go into it. So let us go into it under Your Lordships' supervision"
"Let us see what order we will pass. We are reserving the judgement and we will pass the orders. It will take a few days. If you do any rethinking in the meantime, you may mention it before the court...", said the CJ, concluding the hearing.
Also Read: Breaking: Supreme Court Reserves Interim Order On Pegasus Cases After Centre Expressed Unwillingness To File Affidavit On Spyware Use
Pegasus- "We Don't Want A Single Word Relating To National Security, But There Are Civilians, Person Of Eminence Complaining Of Hacking": Supreme Court
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