Pegasus Snoopgate: SC says allegations serious if true, asks why affected persons didn’t approach police

The Supreme Court on Thursday observed that while allegations in news reports regarding Pegasus Snoopgate, if true, are serious in nature, no efforts seem to have been made by persons affected by the snooping to file criminal complaints with the police before approaching the top court.

A Bench of Chief Justice of India NV Ramana and Justice Surya Kant asked the petitioners before the court to serve copies of the petitions on the Central government law officers and posted the case for further hearing on Tuesday next week.

It, however, did not issue formal notice to the Central government in the matter.

"The allegations are serious in nature if reports in media is correct. I don't want to say also that pleas don't have anything. Some of the petition who have filed the plea are not affected and some claim their phones are hacked. But they have not made efforts to file a criminal complaint," said CJI Ramana, as per a report by Bar & Bench.

The court was hearing nine petitions seeking probe into the Pegasus Snoopgate.

Senior Advocate Kapil Sibal appearing for a petitioner called Pegasus a "rogue technology" which penetrates "our national internet backbone."

"Pegasus is a rogue technology and infiltrates our life without our knowledge. All that it requires a phone and enters into our lives. It’s assault on privacy, human dignity and value of our human republic, it penetrates into our national internet backbone," he said.

The CJI also said that the issue had come to light in 2019 but no serious concerns were raised then.

"People who should have filed the writs are more knowledgeable and resourceful. They should have put more hard work to put more material," the CJI remarked.

He also said that he had read that the spyware is sold only to governments.

Sibal then referred to a case before a California court with regard to Pegasus.

"California court had held that it’s done at the behest of the government," he said.

"What happened in the California matter? The government had claimed sovereign immunity there," Justice Surya Kant said.

"The immunity application was rejected by the court," Sibal replied.

"What is the status (of that case)," the Bench queried.

"It is pending in California court," Sibal responded.

He further said that the issue is whether the government has brought and employed the software to target journalists, politicians and constitutional functionaries.

"If the Central government said this is happening, why did they not lodge an FIR? Why has the Govt of India kept quiet? This is about Indians' privacy and safety. This technology cannot be used in India if not purchased by government," he said.

CJI Ramana said that even state governments can buy it.

"The Govt of India needs to answer on that front. It is not an internal matter. We cannot give all answers as we don't have access and only govt has. They have to state why they did not take any action," Sibal responded.

CJI Ramana, however, persisted with his query on why there was a delay of two years in bringing the issue to the court.

"Why suddenly has this issue cropped after two years?" CJI demanded.

"We only got to know from Washington Post and other media agencies. The extent of surveillance was not known to us. How do we file this petition (without that)?" Sibal said.

He also pointed out how names of certain targets were revealed only yesterday including that of a former judge of the top court.

"Today morning we found out that even registrars of this court has their numbers in snooping list. Their phones were also accessed. Some members of judiciary also named," he said.

The Bench, however, maintained that criminal complaints should have been lodged by the petitioners before approaching the court.

"My question is if you know the phone is hacked, then why wasn't an FIR lodged? That is the only question," CJI Ramana told senior counsel Meenakshi Arora who was appearing for one of the petitioners.

Senior Advocate Shyam Divan, appearing for ADR founder Jagdeep Chhokar maintained that he has not filed a complaint because the matter requires an independent probe.

"This case requires a independent probe by a fact finding committee. It has to be a highest level bureaucrat who replies to this, preferably the Cabinet Secretary," he said.

This, he submitted, is because unlike govt secretaries attached to a particular department, the Cabinet Secretary will have an overview of all departments and know about surveillance issues.

Senior Advocate Rakesh Dwivedi said that the issue is not merely of criminality but of constitutionality.

"I understand tapping phones of terrorists etc but ordinary people phones cannot be compromised. This is an issue that involves constitutionality and not only criminality. Whether the Centre has used or directly used Pegasus needs to be answered. Centre should have replied on its own," he submitted.

The Supreme Court should, therefore, take cognizance of the issue to give confidence to the citizens that their phones will not be compromised, he added.

Senior Advocate Arvind Datar said that there is no doubt that Pegasus was used and devices compromised.

"We know Pegasus has been used now (but) who has used and when we don't know," he said. The remedy is damages but we need to know who did it, he added.

"Section 66A can be applied," the CJI said.

"It was struck down," Datar replied.

Datar said that phone of many persons might have been compromised and the matter should be taken up as a class action case.

"Today 300 people have come to light. We don't know if its 300 or 3000 individuals. Who else will take cognizance of this apart from judiciary," he argued.

The court after hearing the counsel asked all parties to serve their petitions on the Central government and posted the case for further consideration on August 10.

Sixteen international media outlets across the globe including The Wire had published the investigation into Pegasus software being employed by different governments worldwide including Indian government to snoop on political adversaries, journalists and Constitutional functionaries.

This had led to nine petitions before the top court seeking various prayers including SIT probe, judicial inquiry and directions to the government to reveal details about whether it had employed the software and how.

The petitions were filed by advocates ML Sharma, Rajya Sabha MP John Brittas, Director of Hindu Group of publications N Ram, founder of Asianet Sashi Kumar, Editors Guild of India, journalists Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shatakshi among others.