Amit Malviya’s claim that the SC did not allege “non-cooperation” by the govt during Pegasus probe is misleading

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On August 25, Bhartiya Janata Party (BJP) leader and the in-charge of BJP’s National Information & Technology Department Amit Malviya tweeted, “Is having an IQ lower than Rahul Gandhi’s a prerequisite for being in Congress? The SC hasn’t alleged non cooperation by central Govt in the Pegasus case. It has merely said the stand of the Govt has been the same before the committee as well as the Supreme Court. Read the order.” This tweet by Malviya garnered more than 900 likes and close to 300 retweets.

Malviya’s tweet was in reference to the tweet by the Indian National Congress about the hearing of the Pegasus case in the Supreme Court on Thursday, August 25, by a bench headed by outgoing Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli.

Amit Malviya claimed in his tweet that the court had merely said that the government’s stand continues to remain the same and it did not allege “non-cooperation” by the central government. The tweet by Malviya also takes a dig at Congress leader Rahul Gandhi. It is important to note that Amit Malyvia’s tweet does not explain what “stand” of the government was being referred to by the apex court.

Fact-check

On October 27, 2021, the Supreme Court formed a three-member expert committee to look into the alleged misuse of Israeli spyware Pegasus by the Union Government for targeted surveillance on selected opposition leaders, activists, journalists and others as reported first by The Wire as part of the Pegasus Project. The report claimed a digital forensic analysis conducted by Amnesty International’s Security Lab had allegedly found that the phones of dozens of people were either targeted or had been infected by Pegasus spyware, sold by Israel’s NSO Group.

The committee, monitored by former apex court judge R V Raveendran submitted its final report to the top court on August 2, 2022, in three parts — two parts by the technical committee and one by the retired judge overseeing the probe. On August 25, the three-judge bench heard the matter.

Alt News went through the Twitter thread by Live Law (@LiveLawIndia) and Bar&Bench (@barandbench), two digital news agencies that reported the hearing live on Twitter. These threads noted that while going through the report, the CJI read out parts of it and made the oral observation in the packed courtroom that the government had not cooperated with the investigation. He then told solicitor general Tushar Mehta that the Union government had taken the same stand in front of the investigation committee as it did in the apex court earlier, i.e., of non-cooperation with the probe. To this, the SG replied that he was not aware of it.

This oral observation made by the court was also widely reported by media outlets such as The Telegraph, Scroll, The Wire and The Indian Express.

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What is Central Government’s ‘stand’?

Through the portal Indian Kanoon, Alt News got access to the order passed by the Supreme Court in October 2021 where the CJI-led bench had commented on the said ‘stand’ of the Union government. “However, despite the repeated assurances and opportunities given, ultimately the Respondent­Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand. If the Respondent­Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different. Such a course of action taken by the Respondent Union of India, especially in proceedings of the present nature which touches upon the fundamental rights of the citizens of the country, cannot be accepted,” it had said, adding, “They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator.”

To further understand the observation made by the court in its August 25 hearing, we reached out to two independent sources. Senior advocate Vrinda Grover, who was present in the courtroom during the hearing confirmed that the CJI had orally remarked that the government had not cooperated with the investigation. “CJI Ramana, in open court, read out only a part of the technical committee report. During the hearing the CJI orally remarked that it was noted in the report that the Government of India has not cooperated with the probe,” she told Alt News.

Manu Sebastian, the managing editor of Live Law who attended the proceedings virtually (Journalists only had virtual access to the hearing) and reported them live, too, confirmed that quoting the committee’s report, the CJI said the Union government had not cooperated with the committee.

“After reading out parts of the report filed by the SC-appointed committee, the CJI made some oral observations. For example, he said the committee had examined 29 phones, and malwares were found in five. Then he observed that the committee has said in its report that the Government of India has not cooperated with the probe,” Sebastian said.

It is important to note that the last line of Malviya’s tweet — ‘Read the Order’ — seems to suggest that the order throws some light on the government’s stand before the SC and the committee. The record of proceedings, uploaded on the SC website, however, does not mention anything along those lines. The order only says;

“1. Pursuant to order dated 27.10.2021, the Technical Committee and the Overseeing Judge have submitted their Reports in sealed covers. The same are taken on record. The sealed covers were opened in the Court and we read out some portions of the said Reports. Thereafter, the Reports were re-sealed and kept in the safe custody of the Secretary General of this Court, who shall make it available as and when required by the Court. 2. Heard learned Senior counsel appearing on behalf of the parties and Mr. Manohar Lal Sharma, the petitioner-in-person, as also learned Solicitor General appearing on behalf of the Union of India. 3. List these matters after four weeks for further hearing.”

In summary, Amit Malviya’s tweet regarding the oral observations made by the court during the Pegasus hearing is misleading and full of ambiguities. The CJI while reading a part of the technical committee’s report made an oral remark that it was noted in the report that the Government of India has not cooperated with the probe.

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