September 14, 2021 4:00:42 am
Telling the Centre to stop “beating around the bush” on why it does not want to file an additional affidavit into allegations of unauthorised surveillance using the Pegasus software, the Supreme Court said Monday it only wanted to know “whether this software has been used by the government, by any method other than permissible under the law”.
Chief Justice of India N V Ramana, heading a bench also comprising Justices Surya Kant and Hima Kohli, told Solicitor General Tushar Mehta: “We are again reiterating that we are not interested in any manner or in any way to know the issues which are concerned about the security or the defence or any other national interest issue. We are only concerned, in the face of allegations that some software was used against some particular citizens, journalists, lawyers etc, to know whether this software has been used by the government, by any method other than permissible under the law.”
The CJI made these remarks after Mehta reiterated the government stand that the issue was fraught with questions of national security, owing to which it did not want to put everything in a public affidavit to be filed in court and make it a matter of public debate. The government, Mehta said, was willing to have it examined by a committee of domain experts who could submit their report to the court.
Reserving its interim order, the bench said even if the committee is formed and examines the issues and “the report has to be placed before us”, “it will come into the public domain”.
At this, Mehta said: “Your Lordships would decide whether it should or should not. If your Lordships feel, it can come.”
The CJI reminded him: “It’s (filing of affidavit) your prerogative. We have made it very clear… We thought that if something comes, we can take a call on what type of inquiry we have to order.”
When Mehta said “my position is clear”, the CJI told him: “See Mr Mehta, beating around the bush is not the issue.”
The Solicitor General replied: “On the contrary… suppose I say we never used Pegasus, are they going to withdraw their petitions? Answer is clear no. Someone will have to go into it. That’s all I am saying. Let us go into it, under Your Lordship’s supervision.”
Earlier, Justice Surya Kant told Mehta that the court had pointed out even during hearings in the past that it is not interested in matters related to national security. “That’s a very sensitive issue and we are all concerned about it. The only limited affidavit that we expected you to file was that: there are citizens who are before us, alleging the violation of the right to privacy under Article 21, and if you can clarify in your affidavit that these rights have not been violated, and if those have been violated, whether there is permission by the requisite agency, or if there is no permission, has it been done by an outside agency. That it is your concern also and everybody’s concern also if outside agencies are to snoop, interfere, spy into private phones.”
When the CJI referred to the statement of former Union Information Technology Minister Ravi Shankar Prasad in Parliament in 2019 about some WhatsApp users being affected by Pegasus to buttress this, Mehta said it is a “previous statement”. He took the bench through the statement of the current IT Minister Ashwini Vaishnaw.
The CJI said that the court was only on the point of allegations raised by the petitioners. “This is a serious allegation. Some software was used in the phone and it affected the privacy of the person. The minister also admitted in Parliament that the government has taken note of the use of the software. By whom, we don’t know,” he said.
Mehta clarified that the minister had only referred to the news and that it has no basis. He said the government is now stating that it is ready to examine the matter.
The CJI said: “There are different issues. One, according to your own minister’s statement… without being subject to technical analysis, it is not possible to say if some spyware was used. The technicians have to look into it. Two, the minister’s statement also reads that such services are openly available to anyone, anywhere, and anytime, and are commonly used by governmental agencies as well as by private companies worldwide.”
Intervening, Mehta said it was only an extract from the NSO Group’s statement.
“Alright, it is their statement, but it does say that the technology can be used by anybody,” the CJI said, adding “Thirdly, the minister says that in India, here is a well-established procedure through which lawful interception of electronic communication is carried out for the purpose of national security, particularly on the occurrence of any public emergency or in the interest of public safety, by agencies at the Centre and States… These are the three issues that we had thought that if we got some sort of affidavit, we would know where we stand.”
Mehta said: “We have nothing to hide. But there are issues, there are sensitive issues involved where certain things are not placed in public domain by way of an affidavit. But respecting the privacy of individuals, on its own the government is offering that let it be gone into. And the report will come before your Lordships, that ensures credibility. The (proposed) committee will be answerable to your Lordships. We cannot afford to have a committee which cannot withstand your Lordship’s judicial scrutiny.”
Urging the court to allow it to set up the committee, he said it will go into technical aspects and those who suspect that their instruments have been infected by Pegasus can give it to the committee. “The technical analysis, the committee will go into it. Let them have the instruments,” he said, adding that the panel will be “unconnected with the government”.
Mehta said lawful interception is permitted to prevent terrorist activities etc. “Whether it’s done through which software etc can’t be a matter of public debate.”
Senior Advocate Kapil Sibal, appearing for senior journalists N Ram and Shashi Kumar and the Editors Guild of India, said: “The government is now saying we will not tell you the facts which is their bounden duty. All we want to know is if the State has used Pegasus. That does not reveal any secrets of state or impact national security. They are saying submitting it on oath is detrimental to national security. I am sorry, it is detrimental to the process of justice and not to national security.”
He said “if they (government) are not filing an affidavit, this court must hold that it (Pegasus) was used”. He also opposed allowing the government to constitute a committee to go into the allegations.
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