September 17, 2021

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Interim order soon: SC piqued over Centre’s refusal to clarify if Pegasus was used, gives it last chance

supreme courtsupreme court“We were only expecting a limited affidavit since there are petitioners before us who say their rights have been infringed…….you had to say whether it was done lawfully or unlawfully,” the bench said.

Even as the Centre refused to file an affidavit on whether Pegasus software was used to snoop on journalists, politicians, activists and court staff, the Supreme Court on Monday asked it “not to beat around the bush” and inform it if it changed its mind in 2-3 days as it will pass interim directions in the next few days.

While reserving its order on interim directions to be issued on a batch of petitions for independent probe into use of Pegasus Spyware, a Bench comprising Chief Justice N V Ramana and justices Surya Kant and Hima Kohli told Solicitor General Tushar Mehta that it will take “two-three days” to write the order and the government has two-three days time to re-think over the stand taken by it on refusal to file a detailed affidavit in the matter.

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Maintaining that the government has nothing to hide, the SG, at the outset, said the government was of the view that use of a particular software can’t be debated by filing an affidavit as it involved question of national security and may alert a potential terrorist. “Whether a particular software was used or not can’t be a subject matter of affidavit, it has its own pitfalls,” he said, while reiterating its earlier stand that a committee of domain experts, unconnected with the government, may be asked to examine the matter.

While the Centre reiterated that it was ready to form an expert committee with court-appointed members, the top court observed that even if the committee is formed, its report may have to come out in the public domain unlike what the Centre is demanding.

Mehta also told the judges that all the actions taken by the government have been taken as per as per the statutory regime in India and there was no violation of the Telegraph Act or the Information Technology Act.

While clarifying that it does not want the government to disclose anything which compromises national security, the CJI told the law officer that it wasn’t interested in knowing about what the government is doing to protect national security and law and order but only wanted to ensure that the privacy and other rights of the petitioners weren’t violated.

“We were only expecting a limited affidavit since there are petitioners before us who say their rights have been infringed…….you had to say whether it was done lawfully or unlawfully,” the bench said.

Attacking the government for not wanting to file any affidavit in the case the petitioners claimed that the government’s stand proves that prima facie the allegations of snooping are true.

Arguing that the government can’t behave like an adversary by targeting citizens by using a software illegally, the petitioners through senior counsels Kapil Sibal, Shyam Divan, Meenakshi Arora, Rakesh Dwivedi and others questioned why the Indian government was reluctant to disclose its use when the German government and many other governments had already admitted its use.

Sibal, appearing for journalist N Ram, submitted that it was unbelievable that the government said it would not tell the SC about the use of spyware. “The government says filing an affidavit is detrimental to national security but it is in fact detrimental to the process of law. It has already accepted use of Spyware in Parliament,” he said.

Citing various research reports, Divan arguing for social activist Jagdeep Chhokar said the NSO spyware can also be used to plant material in someone’s phone in violation of the Indian law. He also sought a direction to the Cabinet Secretary to file a disclosure affidavit as the government should be concerned if an external agency used the Spyware and if it was by government agency itself, then it was absolutely unconstitutional.

While Dwivedi argued that the SC should itself constitute a committee of experts to examine the matter, Arora demanded setting up an SIT. Senior counsel Colin Gonsalves said a retired or sitting judge the Supreme Court should head the probe.

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