Solicitor General Tushar Mehta told the court “statements on this issue cannot be made through affidavits… (and) filing and then making it (part of) public discourse is not possible”.
“We cannot let terrorists know what software are being used…” he declared.
The court reserved orders on the topic and said it would announce them in two to three days, saying the government could approach the court before then if it changed its mind.
An annoyed Supreme Court earlier reminded the government that it understood the ‘national security’ argument, but that it was only asked to respond to claims of hacking of individuals’ phones – including opposition leaders like Rahul Gandhi, industrialists like Anil Ambani, and journalists and activists critical of the current administration.
“Last time also national security arose and we clarified nobody… is going to intervene in a way that affects national security. We asked you there are claims of individual phones being hacked… so file your affidavit on whether it was authorised,” Justice Surya Kant said.
“We are only concerned with issues of phones of individuals (being) hacked. Which agency has powers and whether it authorised or not… There are individuals saying their right to privacy has been violated,” Justice Surya Kant stressed today.
“If individuals are saying their privacy was violated… it is serious and we are ready to go into it. We will form a committee of experts,” Mr Mehta countered.
But the court seemed unimpressed and pointed out “appointing a committee is not an issue”.
“… purpose of the affidavit was supposed to be that we know where you stand. As per your own IT Minister’s statement in Parliament – that without subjecting the phone to technical analysis – it is hard to assess whether phone was hacked or not,” the court said.
“We have given opportunities (the government has twice before sought time to file this affidavit)… But they (the government) don’t want to file,” it observed.
Senior advocate Kapil Sibal, appearing for two of the petitioners – journalist N Ram and the Editors Guild of India – underscored the point “about privacy of individuals”.
“All we want to know is whether Pegasus was used… we don’t want to hamper national security. If Pegasus was used, and ordinary citizens targeted, then it is very serious,” he said.
“Nothing has been done since 2019 (when WhatsApp filed a case against the NSO Group)…” Mr Sibal said, pointing to reports that German police had bought and used Pegasus.
“Why can’t the Indian government not admit its use of Pegasus? Why should the government be allowed to set up a committee of its own?” he asked.
The court last month had issued a notice to file the affidavit, making it clear that it did not want the government to disclose anything that could compromise national security.
The government had filed a limited affidavit saying the petitions were based on “conjectures… or unsubstantiated media reports or incomplete or uncorroborated material”.
That petition referred to a statement in Parliament by IT Minister Ashwini Vaishnaw (whose phone was also reportedly hacked, although before he joined the BJP), in which said “checks and balances” in the Indian judicial and executive systems precluded such illegal activities.
The Pegasus scandal involves allegations an Indian client of the NSO Group used the software to conduct illegal surveillance on over 300 opposition leaders, journalists and others.
Their phone numbers were allegedly found on a list of potential targets.
The allegations – raised by an international group of media publications that included The Wire from India – triggered massive protests from the opposition and civil society, leading to chaotic scenes inside and outside the Parliament’s monsoon session.
The government has firmly, and repeatedly denied all allegations, and the Defence Ministry has said it has had no transaction with the NSO Group, but the questions have not gone away.
The NSO group has said it is not connected to the leaked databases.
With inputs from NDTV