Hearing a petition on the alleged snooping of phones using the Israeli spyware Pegasus, the Supreme Court of India today asked why no FIR was filed when the issue is known for two years. A supreme court bench comprising of Chief Justice N V Ramana and Justice Surya Kant today started hearing as many as nine petitions filed in the case.
The court noted that if the media reports are correct, the allegations of snooping are serious. However, the court showed its displeasure over the two-year delay in filing a plea and asked what is new in the allegations. The court also noted that none of the petitioners had filed an FIR before filing a case in the court.
CJI: The allegations are serious in nature if reports in media is correct. majority of writ petitions I can see i don’t want to compare with similarities in foreign newspapers. #PegasusSnoopgate #Pegasus #SupremeCourtOfIndia— Bar & Bench (@barandbench) August 5, 2021
The alleged snooping was reported in 2019
The petitions were filed by the Editors Guild of India and journalists N Ram and Shashi Kumar, among several others. Congress leader and senior counsel Kapil Sibal appeared for the three of the petitioners. CJI N V Ramana said that the snooping came to light in 2019, and he was not sure if any efforts were made to get more information on the case. He further added that he did not want to say that it was an impediment.
CJI said, “You all know that there is a prima facie material as well as the credibility of reports where we can order an enquiry etc. unfortunately what I read from writs, in may 2019 this came to light I don’t know there was no serious concern about this issue.” The court further noted that there should have been more hard words to put more material in the petitions.
CJI: You all know that there is a prima facie material as well as credibility of reports where we can order an enquiry etc. unfortunately what i read from writs, in may 2019 this came to light i don’t know there was no serious concern about this issue#PegasusSnoopgate— Bar & Bench (@barandbench) August 5, 2021
Advocate CU Singh responded that although the allegations of snooping using Pegasus had emerged in 2019, the names of the persons targeted were not known at that time. He said that the names were known only after the list was published by the media houses recently.
No one cared to file a complaint
The court noted that though the petitioners have said that their phones were hacked using Pegasus, there was no effort from their side to file a criminal complaint. CJI Ramanna said, “They have not made efforts to file a criminal complaint. My question is if you know the phone is hacked then why wasn’t an FIR lodged. That is the only question.” However, the court added that the allegations made by the petitioners are serious.
The CJI also said that the petitions are based on only newspaper reports and the petitioners could have put in more effort to collect verifiable materials, as most of them are knowledgeable and resourceful journalists and activists.
Advocate Meenakshi Arora appearing for RS MP John Brittas said, “We haven’t slept for two yrs. IT Minister was asked a question in Nov’19 in the parliament & the minister said there was no unauthorized interception being done.” To which CJI asked if they knew their phone was hacked, they should have filed an FIR. “Was your phone tapped or not?” CJI asked. Advocate Arora replied, “I’m a RS MP. No, my phone wasn’t tapped.”
Arora: There has to be judicial oversight of interception.#CJI: We have a simple question. If you know your phone was hacked, you have the remedy of filing an FIR. Why didn’t you do that? Was your phone tapped or not?— Utkarsh Anand (@utkarsh_aanand) August 5, 2021
Arora: I’m a RS MP. No, my phone wasn’t tapped.
Advocate Shyam Divan appearing for Jagdeep Chhokar, who alleged that his phone was compromised, said that they did not file FIR as they believe there should be an 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.
#CJI: That’s not the issue. We want a clarification whether your client has filed any complaint or not.— Utkarsh Anand (@utkarsh_aanand) August 5, 2021
Divan: No, he hasn’t filed any FIR. We want nobody less than cabinet secretary to come up with answers since he is the highest authority in surveillance matters.
The court said that there are too many petitions, some are PILs while the others are by allegedly affected persons. Therefore, the court said that it can’t proceed further without hearing the central govt.
Therefore, the court did not issue any notice to the central govt, but asked the petitioners to serve the copy of their petitions to the central govt. It noted that without the Central government present in the hearing, the bench cannot proceed as of now. When the court asked the petitioners if they have served the petition copy to the Center, some of them replied they had, but the majority of the petitioners did not do so. The court has asked them to serve the petition copy to the Centre and posted the matter for further hearing on August 10.
Government means state government also: CJI
As Pegasus maker NSO has said that the software is sold only to governments and various agencies under the governments, all the petitioners are trying to alleges that the Modi govt in the centre is using the software. But while discussing the issue, CJI Ramana made an interesting observation, as he said that the software could have been sold to the state governments as well. To this Kapil Sibal said that the govt of India should clarify on that as the petitioners don’t have the requisite information.
N Ram misquotes California Court
Journalist N Ram, one of the petitioners, had mentioned in his plea that a California Court had said that some Indian journalists were targeted using the spyware. But when CJI asked advocate Kapil Sibal where the names were mentioned as the court could not find any such thing in the said judgement, Sibal agreed that the statement made in the affidavit in N Ram was incorrect, and no Indian journalist was named by California Court.
CJI: The petition by N. Ram says that the California Court has observed that some Indian journalists and other persons were also targets. Where in the Court order does it say that? We didn’t see it.— Nalini (@nalinisharma_) August 5, 2021
Sibal: It’s not there. You’re right
CJI: Then this statement is incorrect.
The court further said that Sibal has not answered why the petitions were filed two years late. To this Sibal responded that they have come to know about the intensity of it only now.