MEITY filed a limited affidavit in Supreme Court without confirming or denying if the Government used Pegasus

Tl;dr

The Supreme Court bench led by the Chief Justice of India continued to hear petitions related to the use of the Pegasus Spyware against Indians. Before the hearing, the Additional Secretary of the Ministry of Electronics and Information Technology  filed a limited affidavit in response to the petitions. The two-page long affidavit denies allegations against the Government, made in the various petitions relating to Pegasus. It proposes to constitute a Committee of Experts “with a view to dispel any wrong narrative spread by certain vested interests” but does not comment on whether the Central Government used the Pegasus Spyware. At the hearing, the Supreme Court heard the submissions of the petitioners’ counsel on the limited affidavit. It adjourned the case for 17.08.2021 to determine whether the Central Government should file a detailed affidavit in response to the petitions. IFF has provided legal assistance to two petitioners - Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi. Mr Arvind Datar, Senior Advocate, represented them before the Supreme Court.

Previous Proceedings before SC

On 05.08.2021, Rupesh Kumar Singh and Ipsa Shatakshi, both independent activists of repute who report on issues related to Adivasi people in Jharkhand, approached the Supreme Court asking the Court to declare that the use of spyware such as Pegasus is unconstitutional and to direct the Government to disclose all documents that it has related to Pegasus. On the first hearing held on 05.08.2021, the Court directed that the Union of India be served a copy of the petitions and listed the case on 10.08.2021. On 10.08.2021, the Solicitor General sought time from the Court to obtain instructions from the government, and the Court listed the matter for 16.08.2021.

Central Government’s short-affidavit  

Before the hearing on 16.08.201, the Additional Secretary of the Ministry of Electronics and Information Technology (MEITY) filed a limited affidavit in response to the petitions (the Affidavit). At the outset, the affidavit states that the government has not dealt with all facts raised in the petitions because of a lack of time and reserved liberty to file a detailed affidavit. After that, the affidavit makes the following submissions:

1. It denies allegations raised against the Government and claims that the petitions are based on conjectures, surmises, or other unsubstantiated media reports. (Paragraph 3)
2. States that the issues raised stand clarified on the floor of the Parliament by the Hon’ble Minister of Electronics and Information Technology. Given that, nothing further needs to be done at the behest of the petitioners. (Paragraph 4)
3. To dispel any wrong narrative spread by certain vested interests and with an object to examine these issues, the Union of India will constitute a Committee of Experts which will examine all aspects of the issue. (Paragraph 5)

Hearing on 16.08.2021

When the matter was called out for hearing, the Solicitor General, on behalf of the Union of India, read out the contents of the aforementioned short affidavit. After that, counsels for the petitioners made submissions on the limited affidavit. Amongst other things, the counsels pointed out that the affidavit does not clearly state whether the government or its agencies have used Pegasus. They submitted that the Affidavit relies on Mr. Ashwini Vaishnaw’s speech on the floor of Parliament on July 18, 2021, which also did not categorically address whether the Government of India used Pegasus.

They also pointed out that the Affidavit is executed by the Additional Secretary, MEITY, even though, under the provisions of Information Technology Act, 2000 and rules made thereunder, the Secretary in the Ministry of Home Affairs is the competent authority to direct surveillance. Thus, the deponent may not be suitable to respond to the petitions. On the proposed Committee of Experts, the counsels stated that the body should be under the control of the Supreme Court because if the Central Government supervises the Committee, it will not inspire confidence. After that, the counsels sought a detailed response from the Government. After hearing the counsels, the Court adjourned the case till 17.08.2021. The Court will determine whether the Union of India will file a detailed affidavit to the contentions raised in the petitions. The Court has asked the Solicitor General to take instructions regarding the same.

The petitioners, Mr. Singh and Ms. Shatakshi, were represented by Senior Advocate Arvind Datar, Advocate-on-Record Prateek Chadha, Mihir Naniwadekar, Vrinda Bhandari, Tanmay Singh and Krishnesh Bapat. We thank Mr Rupesh Singh and Ms Ipsa Shatakshi for granting us an opportunity to provide legal assistance to them. We are similarly grateful to other journalists and civil society members who sought our expertise. We thank the lawyers who worked on this case, especially Senior Advocate Arvind P. Datar, who has led the legal team.

We also thank Senior Advocate, Mr. Rakesh Dwivedi for leading on Mr. SNM Abdi’s and Mr. Prem Shankar Jha’s petition, and advocate Eklavya Dwivedi for providing valuable legal assistance on the matter.

We will keep you updated on the next date of hearing.

Important Documents

1. Writ Petition filed by Mr Singh and Ms Shatakshi (link)
2. Previous post titled ‘Pegasus: Rupesh Kumar Singh and Ipsa Shatakshi and other journalists approach SC’ (link)
3. IFF’s Statement on hacking revelations made by the Pegasus Project (link)
4. Personal Data and Information Privacy Code Bill, 2019 introduced in Parliament (link)
5. IFF’s Surveillance Reform PIL (W.P. Civil No. 44 of 2019) (link)
6. “Read: NSO Group's Response to the Pegasus Project and Our Take” published in The Wire dated July 18, 2021 (link)