Updated: August 18, 2021 7:41:10 am
The Supreme Court Tuesday issued pre-admission notice to the Centre on a batch of petitions seeking an independent probe into the Pegasus controversy while also observing that it will not ask the government to disclose information that affects national security interests.
A Bench headed by Chief Justice of India N V Ramana said it will discuss and decide the future course of action, after the government reiterated that the matter had national security implications due to which it did not want to put the details in a public affidavit. It said it would reveal all aspects to a committee of independent experts, who can then submit its report to the Court.
“Question is whether it (the details) should come before the Court by way of an affidavit or by way of placing before a committee. I’m not saying I don’t want to tell anyone. I’m only saying I don’t want to tell it publicly… Limited point is let me say that before a committee, which will then come before the Court,” Solciitor General (SG) Tushar Mehta, appearing for the Centre, told the Bench, also comprising Justices Surya Kant and Aniruddha Bose.
Directing the matter to be listed after 10 days, the CJI responded, “… you understand we are not asking you to divulge what you don’t want to… We are not compelling you… We are not averse to the committee by you, but we are on admission stage. We need to think how to go ahead with the matter… We had thought a comprehensive reply would come, but it was a limited reply… We will discuss what needs to be done.”
On Monday, the Centre had filed a brief affidavit, “unequivocally” denying all allegations made by the petitioners and stating that it “will constitute a Committee of Experts in the field which will go into all aspects of the issue” in order “to dispel any wrong narrative spread by certain vested interests”. The Court had then asked the SG if he wanted to submit any other affidavit in the matter.
Mehta told the Bench Tuesday that “whatever we respectfully submitted in the last affidavit covers the case”, calling it a “considered response”.
To Justice Bose’s query on whether the Centre was sure it didn’t want to “say anything more on this”, Mehta mentioned that Senior Advocate Kapil Sibal, appearing for some of the petitioners, had himself said Monday that a statutory mechanism exists that permits interceptions by the government as the country has to deal with issues like terrorism.
“Yesterday they said the government should say whether Pegasus was used or not, and that beyond that they don’t want anything… It’s nobody’s case that IT rules are not in existence, which means (that) for combating terror etc software can be used. Now they want the government to disclose which software is used,” the SG argued.
He claimed that in case this was disclosed, those likely to be intercepted may take preemptive or corrective steps. “These are national security issues and we cannot hide anything from the Court… We will place everything before the committee. It can’t be the subject matter of an affidavit or public discussion.”
Adding that some military-grade software was used for interception, Mehta repeated, “We have no difficulty to disclose before the committee. We will constitute a committee and it will report to the Court… If a matter is sensitive, then it has to be treated as sensitive.”
The SG added, “If there is any illegitimate use, then it cannot be countenanced. There can’t be anything more fair than this.”
Justice Surya Kant said, “We as a Court and you as SG and lawyers as officers of court, none of us would like to compromise with security of this country or defence of the nation, irrespective of prayer or no prayer… Where it involves defence of the nation, we will never ask any such thing.”
The question before the Court was limited, he added. “There are some civilians who are alleging that their phones were hacked. Even that is possible with the permission of the competent authority. What is the problem if that competent authority files an affidavit before us? We don’t want you to say anything related to national security.”
Justice Kant added, “What can be done is, we will issue a simple notice. Let the competent authority under the rules take a call, as to what extent information is to be disclosed. Then we will see what is to be done.”
Mehta replied that there are terror organisations which know that intelligence agencies will be intercepting, and that there are many technologies one is not aware of. The moment a country says it is not using Pegasus, the enemies will modulate their software, the SG argued.
Intervening, Sibal said, “The security of the State is as important to us as to the government. Our intention is to not have security details, but he must reply whether Pegasus as a technology was used or not.”
Mehta then urged the Bench to allow the constitution of the committee and added that it will comprise independent experts and not government members.
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