Thread by @barandbench

[#PegasusSnoopgate #SupremeCourt]

CJI NV Ramana led bench to hear petitions seeking a court monitored probe, a judicial inquiry & directions to the government to reveal details about whether it had used the Pegasus software to spy on citizens @nramind @JagdeepChhokar

Centre had earlier filed a short affidavit to inform that it will form a committee of experts to probe #pegasussnoopgate .. Today SG Tushar Mehta is expected to inform the stand on an additional affidavit.
#SupremeCourt

Matter starts
@nramind,@karuppadanna,@KapilSibal,@IndEditorsGuild,@JohnBrittas,@YashwantSinha,@paranjoygt,@JagdeepChhokar

Sr Adv Kapil Sibal: SG Tushar Mehta had to make a statement

SG Mehta: We have considered. there are pleas before you which seeks inquiry into the issue of unauthorised interception.

SG: we had already said that as per telegraph act and IT act and rules, there has been no unauthorised interception and only as per Section 69 of the Act. The issue is important. therefore we have placed an affidavit that we will constitute a committee of domain experts

CJI: Last time we wanted to have an affidavit and now you are saying this

SG: This committee will not have government members.

SG: Such issues of whether centre was using pegasus or not cannot be debated in affidavits and can be looked into by domain experts. Section 69 does provide interceptions by which terror funding and terror links etc have been unearthed.

SG: whether it has been done by A software or B Software cannot be said on affidavit. domain experts unconnected with govt will be looking it and we will place all before them.

SG: Which software was used and which software not used cannot be on affidavit but it will be before the experts, stating such things have its own pitfalls and should not become a part of public discourse. this is interest of nation and security of nation.

Justice Surya Kant: when the matter came up a few days back and national security arose, we said that no one is interested to disclose anything which comprises internal or external national integrity. its sensitive and we are concerned.

We were only expecting a limited affidavit since there are petitioners before us who say their rights have been infringed by A or B agency. You had to say whether its done lawfully or unlawfully: SC

Details needed was other agency was involved to spy on them. ..then ,measures could be taken. National security is not a part of present proceedings : SC

We are not interested to know about national interest issues but we are only on the face of allegations some software was used to snoop certain citizens like lawyers etc. we wanted to know if its done to see if its permissible under law: CJI

SG Tushar Mehta reads the IT minister's statement made in the parliament. The statement read as "publication of stories before monsoon session cannot be a coincidence," reads SG Mehta from the statement of the Minister
#supremecourt #pegasus

"NSO had stated most of the countries on the database were not even its clients": SG Mehta continues to read from the statement of the IT Minister #supremecourt #pegasus

SG: I am not averse to certain individuals claiming invasion of privacy. This is serious and must be got into. The question is whether its pegauss or something. Our stand is putting this into affidavit will not serve national interest.

SG: hence allow us to form a committee of domain experts without govt members

CJI: we are going back to again and again, we are not interested to know what you are doing to protect interest of the country, etc etc. Your minister admitted that govt taken note of software being used

SG: minister says he heard about such software dismissed it

CJI: Appointing a committee or making inquiry is not the question here. if you file an affidavit then we know where you stand. as per your minister's statement.... "such services are openly available to anyone, anytime.."

SG: No, this is by the NSO group...

CJI: There is a procedure established under law which allows interception too... we had to have your affidavit to understand where you stand.. we don't want to say anything further. There are 3 steps in the minister's statement: it requires probe, it can be used by anybody

CJI: and if it's used by government then it's as per the procedure established by law.

Sr Adv Kapil Sibal: i am ready to argue the full matter

CJI: We had given fair opportunity to centre to make a statement. Now they don't want to file affidavit. so we will pass an order like that... what to do

Sr Adv Sibal refers to Ram jethmalani vs Union of India (2011 judgment)

@KapilSibal : "by history and tradition of common law, judicial proceedings are substantively, though not necessarily fully, adversarial, both parties bear the responsibility of placing all the relevant.."

Sibal reads from the judgment: "information, analyses, and facts before this court as completely as possible. In most situations, it is the State which may have more comprehensive information that is relevant to the matters at hand in such proceedings..."

Sibal reads from the judgment: "some agents of the State may perceive that because these proceedings are adversarial in nature, the duty and burden to furnish all the necessary information rests upon the Petitioners..."

Sibal reads judgment: "and hence the State has no obligation to fully furnish such information. Some agents of the State may also seek to cast the events and facts in a light that is favourable to the government in the immediate context of the proceedings.."

Sibal reads judgment: " even though such actions do not lead to rendering of complete justice in the task of protection of fundamental rights. To that extent, both the petitioners and this Court would be handicapped in proceedings under Clause (1) of Article 32...."

Sibal: Here when it is about fundamental rights, Centre cannot be an adversary and state has to reveal all the facts and provide all information to petitioner.

Sibal reads from judgment: "because the petitioners would also then be enabled to bring to light facts and the law that may be relevant for the Court in rendering its decision. In proceedings such as those under Article 32..."

Sibal reads from judgment: "....both the petitioner and the State, have to necessarily be the eyes and ears of the Court. Blinding the petitioner would substantially detract from the integrity of the process of judicial decision making in Article 32 proceedings..."

Sibal reads from judgment: "..., especially where the issue is of upholding of fundamental rights."

Sibal: all we wanted to know was pegasus used and they say it is detrimental to national interest but it is only detrimental to justice!

Sibal: If Pegasus was used and targets were ordinary citizen then it is serious. this software is illegal and cannot be used. Mind you my lords. this is what IT minister said they accepted indeed it was used.

Sibal: Centre would have taken ation against NSO and pegasus. have they lodged an FIR? Have they tried to find out the truth? central emergency response team could have looked into it. UNBELIEVABLE THAT CENTRE SAYS I WILL NOT TELL THE COURT !

.@KapilSibal reads the answer given by then law minister in 2019: he was asked if he knows about pegasus was used to infect the phones... he said ..yes sir govt has taken note of some spyware has infected phones.... 120 mobile users were in India. This is an admission my lord

Sibal: Govt cannot say shut your eyes to court and we will do what we want

SG: please don't put words in my mouth

Sibal: that's exactly what it means

#supremecourt #pegasus #PegasusSnoopgate

Sibal refers to the Indian Computer Emergency Response Team And Manner Of Performing Functions And Duties) Rules, 2013.
#supremecourt #pegasus #PegasusSnoopgate

Sibal: That is why we mention that this is being done through pegasus and our rights are being infringed. the rules cover response to cyber security incident. do we have this report? do we have the security audit report.. this is rule 10

#supremecourt #pegasus #PegasusSnoopgate

Sibal: international agencies have accepted the fact that Indians were impacted and the names have been given in this case. yersterday Germany also accepted that pegaus was used to counter terror etc

#supremecourt #pegasus #PegasusSnoopgate

Sibal: It is our allegation that govt wants to hide facts. Remember the Hawala case where supreme court formed a committee of sitting judges and proceedings were conducted in chambers to safeguard national interest issues. #supremecourt #pegasus #PegasusSnoopgate

Sibal: Why should government be allowed to form a committee of its own? it should be completely away from govt control #supremecourt #pegasus #PegasusSnoopgate

Sr Adv Shyam Divan appears for @JagdeepChhokar

CJI: we thought centre will file counter depending on that we thought we will go ahead. only issue is the interim orders to be passed. please say what you have to say apart from Mr Sibals point, we are not disposing off final plea

Divan: We have included cases where it has been said that only a cabinet secretary could file an affidavit in a case like this as invasion of privacy can be by a govt functionary or external agency. as top most bureaucrat he takes stock of all departments.

Divan: While it is correct that in realm of parliament of course a statement will be correct but in court its the rule of pleadings and thus affidavit becomes very important. we have also filed four expert affidavits.

#supremecourt #pegasus #PegasusSnoopgate

Divan: The point made by Anand V who has also submitted affidavits before courts in Kenya etc, he is a qualified privacy and security researcher

#supremecourt #pegasus #PegasusSnoopgate

Divan: We have filed an affidavit also by Sandeep Shukla. He has conducted lab experiments on pegasus, he sets out exactly what has happened here. he concludes that pegasus can spy on each and every info including intimate pictures and personally identificable info

Divan: These experiments were conducted to show how pegasus affects after the 2019 impact. He said zero click vulnerability shows the victim does not have to take any action and yet be infected...

CJI: We know it will be introduced silently without consent.. we know..

Divan: Anand V says pegasus is not only surveillance mechanism but also an implant mechanism which can be used to implant false data. This is beyond IT or Telegraph act. if this happening centre has to be vitally concerned. if its by govt then it cannot be done

#supremecourt

Divan: This is a complete assault on democracy and hence we say please grant our interlocutory prayers. We request cabinet secretary file an affidavit. we have filed an additional affidavit here which has various decisions #pegasus

Sr Adv Rakesh Dwivedi refers to Order VIII Rule 3 of Civil Procedure Code.

Dwivedi: the denials are totally non-specific denials in this case my lord.

#supremecourt #pegasus

Dwivedi: It is said defendant must deal with each allegation made in which he specifically denies the truth of it. If not done then it shall be taken to be admitted as against the defendant.

Dwivedi: centre says it is not possible to deal with each point of fact in petitions and then they say it is unequivocally stated that all statements are false. this all is completely non-specific denials.

#pegasus

Dwivedi: I appear for a journalist whose phone was snooped and it was accepted too. this was not denied.

#Pegasus

Dwivedi now refers to the transparency report submitted by NSO group

Dwivedi: this is NSO's own admission that they are well known for pegasus software used by states to collect information from phones of criminals. however nso says they does not control software

#pegasus

Dwivedi: NSO has clarified that they have no control over who is snooped or possess data regarding the same. petitioner is a journalist and if there is snooping privacy and expression gets affected. this right is recognised in three judgments. #pegasus

CJI: In what purpose is this being cited?

Dwivedi: to show the chilling effect on me.

#pegasus

Dwivedi: If centre does not want to file an affidavit then there would be a presumption that prima facie our submissions are correct. Please accept our prayer of forming a committee

SG: We have already said that we will form a committee...

Dwivedi: this is about credibility

Dwivedi: centre is refusing to file an affidavit and not even a para that pegaus was not used. then law minister rubbished the entire claim and now a committee is being suggested. This inquiry will be about credibility and govt cannot constitute the committee.

Dwivedi: your lordships should constitute the committee
#supremecourt

Sr Adv Meenakshi Arora: there must be SIT here so that a retired judge of this court heads the same.

#pegasus

Sr Adv Colin Gonalves: i appear for freedom law centre and a journalist from Chhatisgarh. the scribe being poor still has the phone with him. centre is engaging widespread surveillance since long, long time.

SG Mehta: This pleas create a lot of doubt.

#pegasus

CJI: we are considering what interim orders can be passed here

Gonsalves: its 20 pages report, RTI replies and statement by the home secretary that India is engaged in widespread surveillance. this is submitted to show how centre and state is engaged in surveillance

#pegasus

Gonsalves: please look at retired or sitting judges of the Supreme Court to look into the same.

CJI: Mr Mehta, please think and argue the matter...

Adv ML Sharma: it was said that plea is based on newspaper reports, it was by your colleague judge... i forget the name

CJI: This is how you refer to his lordship... you are practicing in this court!

SG: You cannot say like this

#pegasus

Sharma: I was aksed why i am a year late to file this

CJI: You want to start all this again

Sharma: my prayer is different.

CJI: then we will detagging the case? If you are pursuing in parliament, you can go there

Justice Kant: today we did not make any comment that you are late or anything of that sort...

Sharma: It has been established that one pegasus is in the phone then any data can be hampered with and this can impact probe by investigation agencies. Evidence can be manufactured

CJI : Is it your case that the government has implanted any document in your device? Is it your case that the govt has used malware against you?

#SupremeCourt #Pegasus

ML Sharma: Suddenly you have given me opportunity to argue.

CJI : Suddenly? You were here from morning Mr Sharma

Sharma : I was under impression I will not get opportunity to argue today

#pegasus

SG Mehta: my case is simple there is statutory regime is in place. interception is itself not in doubt. every technology has its own side effects or ill effects. we are saying let all this technical issues be gone into by domain experts

#pegasus

SG: There is no point of doubting the govt appointed committee because (1) no person will have nay relation o govt (2) the report will be submitted to court. I am saying let experts see and a report be submiited

SG: a facade has been created that govt is not telling the truth, but its not like that..we are saying let this be gone into since its about privacy of individuals. we cannot have a committee which cannot withstand judicial scrutiny

#pegasus

SG: The insistence that it must come in public domain has ill effects. If i say i don't use this software then it will alert terror groups and every technology has a counter technology to protect them from security agencies #pegasus

Judges take a moment to discuss
#pegasus

CJI: you have repeatedly saying that you don't want to put anything in affidavit. We also don't want security issues to be put here. presumably a committee has been formed and then the report will be submitted here. Now we have to look into whole issue and decide something

CJI: Mr Mehta beating around the issue is not the question here

SG: I am saying let this be gone into under your supervision

CJI: Let us see what to do #pegasus

Senior Adv Harish Salve appears for petitioner challenging the Justice MB Lokur headed inquiry panel by West Bengal govt on #Pegasus

CJI says the plea will be heard on the next day after some orders are passed on main matter

BREAKING CJI: We reserve orders. This is for interim orders. You have two three days Mr Mehta, if you have any rethinking you can mention before this court

#pegasus

BREAKING: Supreme Court reserves order in a batch of petitions seeking probe into Pegasus surveillance. This is for interim orders.

You have two-three days Mr. Mehta, if you have any rethinking you can mention before this court: CJI

#Pegasus #PegasusSnoopgate

#BREAKING [Pegasus] Not interested in national security issues, only on allegations of snooping: Supreme Court reserves order

report by @DebayonRoy

#PegasusSnoopgate #Pegasus

Read more here: bityl.co/8f5T