Pegasus Is A Malware Which Is Per se Illegal, The Fact That Govt. Have Not Denied it Means They Used It: Kapil Sibal Tells Supreme Court

In the Pegasus issue, the petitioners on Monday did not take kindly to the Centre telling the Supreme Court that it has nothing more to say than what has been said in 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.The following are the arguments by the battery of senior advocates for the petitioners before the bench of Chief Justice N. V. Ramana and Justices Surya Kant and Hima Kohli.The CJ had told the senior advocates to keep in mind that the proceedings are at an interim stage at present- "You have placed some material before us. We have given enough opportunity to the government to make some statement. They are saying- for whatever reason, I don't want to make any comment on that- that they don't want to file an affidavit. We have no option now but to pass whatever order we have to pass. We thought if the government will file some counter-affidavit, how to go further would depend on that. Now we will consider what are the interim orders that we will have to pass"Senior Advocate Kapil Sibal, for N. Ram, former Editor of The Hindu, and Sashi Kumar, Chairperson of the Asian College of JournalismBeginning, Mr. Sibal indicated the observations of the Supreme Court in the 2011 case of Ram Jethmalani v. UOI, where the court had noted that the burden of protection of fundamental rights is primarily the duty of the State, and hence, withholding of information from the petitioners, or seeking to cast the relevant events and facts in a light favourable to the State in the context of judicial proceedings, would be destructive to the guarantee in Article 32, and the State has the duty to reveal all the facts and information in its possession to the Court, and also provide the same to the petitioners."This is their duty, My Lords. They cannot say that I will not tell anything! What is happening today is that the government and the State are now telling you that we will not tell you the facts. It is its bounden duty! All we want to know is whether they used Pegasus, that is all. That does not reveal any secrets of the State and does not impact national security. But the SG says that making that statement on oath is detrimental to national security itself! I would say not doing so is detrimental to the process of justice! They have to protect our fundamental rights. We can only come to court, nothing more than that. I am sorry to say that today the SG, in making the statement, is denying protection to me which the court must uphold in my favour!", Mr. Sibal advanced."This is a malware which is illegal per se. That is the position. The fact that they have not denied it means they have used it. So if they don't file an affidavit, the court must accept! Because these are the allegations which have been made that Pegasus was used, and if Pegasus was used in the targeting of ordinary citizens, it is per se illegal, it has no legal basis and it cannot be used! This is a very serious matter! If it can be used, then it can only be used in accordance with appropriate procedure. This appropriate procedure has appropriately not been followed. It has been admitted by them that this spyware has been used! The CJ rightly noted that in response to a question in the Parliament in November, 2019, the then-IT and Law Minister had said that the government has taken note of the fact that a spyware/malware has affected some WhatsApp users. Why have they not taken any action until 2021? Because of the use of the spyware against citizens of the country! Otherwise, they would have taken action against NSO, Pegasus, all those who were intercepting! Have they tried to find out? It is unbelievable that the government of India says I will not tell the court!"Mr. Sibal read out the 2019 response of Minister Ravi Shankar Prasad in the Parliament on the question of interception of mobile phone data- "Government has taken note of the fact that a spyware/malware has affected some Whatsapp users. 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...The Indian Computer Emergency Response Team (CERT-In) published a vulnerability note on May 17, 2019 advising countermeasures to users regarding a vulnerability in WhatsApp. Subsequently, on May 20, 2019 WhatsApp reported an incident to the CERT-In stating that WhatsApp 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. On September 5, 2019 WhatsApp wrote to CERT-In mentioning an update to the...

Pegasus Is A Malware Which Is Per se Illegal, The Fact That Govt. Have Not Denied it Means They Used It: Kapil Sibal Tells Supreme Court

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