New Delhi: The Supreme Court Thursday asked the petitioners in the Pegasus hacking case to serve copies of their pleadings on the Government of India and fixed 10 August as the next date of hearing.
A bench led by Chief Justice of India N.V. Ramana said it would like to hear the government before taking a decision on whether a notice should be issued or not.
“The matter has got complicated with too many petitions. Some have challenged the vires of the Information Technology law also. Let someone appear on behalf of the Centre and then we will see,” the bench, also comprising Justice Surya Kant, observed orally.
The court order came on a batch of nine petitions demanding an independent inquiry into the alleged snooping.
The petitioners in the case are M.L. Sharma, advocate, John Brittas, Rajya Sabha MP, N. Ram, director of The Hindu Publishing Group, Sashi Kumar, founder of Asianet, the Editors Guild of India (EGI), journalist Paranjoy Guha Thakurta, civil rights activists Jagdeep S. Chhokar and Narendra Mishra.
Four journalists — Rupesh Kumar Singh, Ipshita Shatakshi, S.N.M. Abdi and Prem Shankar Jha — whose names figure in the Pegasus list have also approached the court.
All have sought a direction to the Centre to produce details of contracts entered into with foreign companies for deploying spyware for alleged surveillance. They even want the government to disclose the list of the potential targets against whom the spyware was used.
The petitioners have assailed the alleged tapping on the ground it is in clear “derogation of Article 21 (right to live with dignity)” of the Constitution.
During the hearing, the bench repeatedly asked the lawyers, particularly those appearing for individuals whose names figured in the list of potential targets, whether their clients had availed any legal remedy such as registration of an FIR on learning their phones were hacked.
At the outset, the court said certain issues related to the case were “troubling it”, and then went on to list them.
The court termed the allegations of snooping as “serious,” but at the same time said all the writ petitions, except the one filed by EGI, were based on newspaper reports.
For the court to order an inquiry into such wide-ranging allegations, the bench added, it would need some other verifiable material, apart from the news reports cited in the petitions.
“The petitioners are highly resourceful. They have international access. They should have done more focussed effort or hard work to bring more material on record,” the bench observed.
Further, the court inquired as to why did the petitioners raise the issue two years after the alleged surveillance took place. “We are not finding fault with the delayed approach. But we want to know if any serious effort was made then on the issue,” the court said.
Appearing for Chhokar, senior advocate Shyam Divan said the case is “much more than an individual’s interest,” as it concerns the privacy of all citizens.
The court held more than an hour-long hearing in the matter and heard counsel appearing for all nine petitioners.
‘Assault on privacy’
Senior advocate Kapil Sibal, appearing for N. Ram and EGI, took the judges through a California court order to highlight the “rogue technology” used by Pegasus and the fact that it is bought by governments only.
“This (technology) infiltrates into our lives without our knowing. Then what it does it hears, surveys every minute of our movement. It is an assault on privacy, human dignity, and the values of our republic, as it infiltrates into the backbone of our nation’s internet system,” Sibal said.
The senior lawyer admitted the petitioner did not have direct access to information and that the EGI has listed 37 specific cases of infiltration.
He read out the statement issued by the head of NSO to point out that the spyware was used by the government in cases of crime and terrorism. “So now, journalists, constitutional authorities, court staffers have become criminals and terrorists,” he said, urging the court to issue notice to the central government to know the truth.
Sibal added there is no denial about the fact that the technology was used in India and the same is possible only if it is purchased by the government. “My information is it is the central government,” he replied when the court said that even the states could have purchased it.
“It is not just an internal matter but a matter of international security and only the government can give those answers,” he told the court.
Media reports credible, petitioners say
Divan informed the court that the petitions were filed only after the two-year-old investigation into a list that was supposedly leaked by a whistleblower revealed the snooping instances. He said following investigative reports on the same, two governments — US and France — have already taken action.
Therefore, the media reports, also referred to in the petitions before SC, enjoy a high degree of credibility, he asserted.
On behalf of two journalists whose names also figure in the Pegasus database, senior advocate Arvind Datar responded to the bench’s question on whether individuals whose phones were hacked lodged any complaint.
Datar said there was no provision under any law that allowed them to take legal recourse for infringement of their privacy of such a nature. He added the current Information Technology Act permits criminal action in case there is harm to bodily privacy.
But after the Puttaswamy judgment in 2018, he explained, privacy has been expanded to also include violation of digital autonomy. “The top court held that privacy permeates the entire part-3 (fundamental rights) of the Constitution. The IT Act and the rules framed in 2009 could not foresee such kind of technology that would violate our privacy in this manner. Therefore, these petitions are filed in the top court under Article 32,” he said.
Why news media is in crisis & How you can fix it
India needs free, fair, non-hyphenated and questioning journalism even more as it faces multiple crises.
But the news media is in a crisis of its own. There have been brutal layoffs and pay-cuts. The best of journalism is shrinking, yielding to crude prime-time spectacle.
ThePrint has the finest young reporters, columnists and editors working for it. Sustaining journalism of this quality needs smart and thinking people like you to pay for it. Whether you live in India or overseas, you can do it here.