NEW DELHI: The Supreme Court on Monday said it will pass orders this week on the nature of inquiry into the Pegasus controversy after being disappointed by the Centre’s refusal to file a detailed affidavit despite taking time twice, only to come back and reiterate readiness to set up an independent technical committee to examine alleged use of the spyware for snooping.
Solicitor general Tushar Mehta explained the Centre’s predicament in filing an affidavit and, consequently, putting in the public domain, details of software used by the government agencies to intercept communications between “enemies of India” and terror organisations with their sleeper cells.
This was the ground taken in its short affidavit filed by the Centre on August 17, the day the SC had issued notice to the Centre seeking a detailed reply. The SG had again sought time on September 7 to allow the Centre to decide whether or not to file such an affidavit.
When he kept harping on the efficacy of the government setting up a technical committee comprising of domain experts, who have no links of any kind with the government, to examine the issue, a bench of Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli said, “We thought the government will file some affidavit and depending on that we will decide how to go further. Now, they have made a statement. We will consider what interim order or some order we have to pass.”
The CJI-led bench said, “After all it is your prerogative (whether to file a detailed affidavit or not). We thought that if an affidavit is filed, we can take a call and decide what type of inquiry we can order. Now, we have to take into account the whole issue and do something.”
As the SG reiterated the government’s stand and said, “The government’s position on the issue is clear.” CJI Ramana said, “Mr Mehta, beating around the bush is not the issue.” The SG countered it by saying, “Suppose the government says it never used Pegasus, are they (the dozen PIL petitioners) going to withdraw their petitions? The answer is no. Someone has to go into it. That’s why I am saying someone (technical committee set up by the government) has to go into it under SC supervision.”
The bench reserved its decision on the nature of the interim order it would pass, but kept the window open for the government to key in an affidavit at the eleventh hour. “We will pass some orders. It will take us two or three days to prepare the interim order. If you have any rethinking, you can inform us,” the bench told Mehta.
Appearing for the petitioners, senior advocate Kapil Sibal said the court should not tolerate the audacity of the government to refuse divulging information about the use of Pegasus to snoop on citizens in brazen violation of their right to privacy, ruled by the court to be part of right to life.
“The Centre appears to have used Pegasus. That is why it has not taken any action against Israeli manufacturer NSO or any of the agencies that have used it. Neither has it registered any FIR to inquire into it despite admitting awareness about use of Pegasus while answering a question in Parliament,” Sibal said and requested the court that if at all a technical expert committee was set up, then it should be constituted by the court and not by the government.
Sibal’s arguments were supplemented by a host of senior advocates — Shyam Divan, Dinesh Dwivedi, Rakesh Dwivedi, Meenakshi Arora and Colin Gonsalves. Most of them said that the committee must comprise experts chosen by the SC and not the government.
The SG said while it is the wont of petitioners, the government is handicapped from sensationalising the issues involved. “There would be a marginal line of distinction between protecting the privacy of the citizens, which is the priority of the government, and entering into a zone that could compromise national security. There is a statutory regime in place and interception per se is not illegal. A petitioner cites two experts to say this (Pegasus) is a very dangerous technology. It is a dangerous technology. All technologies have their own ill-effects. They can be used and abused.”
“Let all these technical issues be gone into by domain experts to find out whether the petitioners are right or wrong. Let the petitioners submit their phones for examination by the committee to find out whether these were snooped using the spyware. There is no question of doubting the credibility of the government-appointed committee. It is an assurance by me to the court that the domain experts will have no relationship with the government, directly or indirectly or any employment link with the government. Their report will ultimately come before the Supreme Court. We have nothing to hide. But a facade is created that the government is not telling the truth to the court, the government is hiding something,” he said.
“There are sensitive issues involved where certain things are not placed on record by way of an affidavit. But, respecting the privacy of the citizens, the government on its own is offering to let the issues be gone into and reports be placed before the SC. The committee will be answerable to the court. We cannot afford to have a committee which cannot withstand the SC’s judicial scrutiny. This is the response to doubts expressed about the credibility of the committee,” Mehta said..
“(Petitioner’s) insistence that it must be put in the public domain would cause irreparable harm to national security. If the government says it is not using a particular software. It will alert potential terror groups. If the government says it is using it, there will be different consequences. Every technology has its counter technology to protect their system from getting examined by security agencies. Instead of the petitioner’s insistence on an affidavit to put everything in public domain, I am requesting for a technical committee,” the SG said.
Peppered by the repeated assertions from the government about its clear intentions, the CJI said, “You are repeatedly saying you do not want to put anything (relating to national security) in the public domain. We are also not interested in it. We have made it very clear. Petitioners are also not interested in knowing anything concerning national security and interests of the country. Even if they insist, we are not going to entertain such requests. The question is, even assuming for a minute, an expert committee is appointed, which examines the issues and submits a report to the court. When they place the report before the court, that day it will come in the public domain.”
The SG said, the SC will decide whether the report should be put in public domain or not. “Certainly it can come into the public domain, if the SC so decides,” he said.