New Delhi: The Supreme Court on Monday reserved its interim order on multiple petitions seeking an independent probe into whether the government had used the Pegasus software to spy on citizens.
The Bench of Chief Justice of India N V Ramana, Justices Surya Kant and Hima Kohli passed the order after the Centre showed marked reluctance to disclose surveillance details on affidavit on the pretext of national security.
An annoyed Bench took strong exception to Solicitor General Tushar Mehta, appearing on behalf of the Centre, twice seeking time to file an additional affidavit and then refusing to do so.
This despite the AG being clearly told that national security is not an issue before the court, which was only concerned with the privacy of individuals breached by snooping.
"We are not interested in knowing about national interest issues, but we are only looking at allegations that some software was used to snoop on certain citizens like lawyers, political leaders and journalists. We only wanted to know if it was done and to ascertain if it was permissible under law or done unlawfully," CJI Ramana said.
The Solicitor General, however, harped on the first affidavit which had said that the government will set up a panel of domain experts to probe the allegations, assuring the court again on Monday that the "report of the committee of domain experts will be made available to the court."
Senior advocate Kapil Sibal, appearing for veteran journalist N Ram of The Hindu and the Editors Guild of India, asserted that the government wants to hide facts. If national security is involved, he suggested the government should follow the procedure adopted in the Hawala case when the Supreme Court formed a committee of sitting judges and proceedings were conducted in chambers to safeguard national interest issues.
"Why should the government be allowed to form a committee of its own? It should be completely away from government. control," he argued.
Asserting that the government had "nothing to hide," the Solicitor General explained that "we cannot let terrorists know what software is being used" by filing an affidavit to let it become part of a public discourse. The petitioners wanting everything to come in public domain has ill-effects. "If I say I don't use this software, then it will alert terror groups and every technology has a counter technology to protect them from security agencies." He even offered that the domain expert's probe "be gone into under your supervision."
"Let us see what to do, based on the petitions since the government has refused to answer specific questions," CJI Ramana said, reserving the interim order and telling the Solicitor General: "You have 2-3 days, Mr Mehta, if there is any rethinking, you can mention before this court.
"We have given opportunities to the government twice (to file the affidavit), but they don't want to file," the CJI lamented, saying: "We had given fair opportunity to the Centre to make a statement. Now, they don't want to file an affidavit. So, we will pass an order like that... what to do."
"... the purpose of the affidavit was supposed to be that we know where you stand. As per your own IT Minister's statement in Parliament -- without subjecting the phone to technical analysis -- it is hard to assess whether phone was hacked or not," the court said.
Justice Surya Kant also pulled up the Solicitor General for playing the national security card again and again. "Last time also the issue of national security arose and we clarified that we are not going to intervene in a way that affects national security. We asked you there are claims of individual phones being hacked......So file your affidavit on whether it was authorised."
"We are only concerned with issues of phones of individuals (being) hacked. Which agency has powers and whether it authorised or not... There are individuals saying their right to privacy has been violated," he said.
Sibal underscored the issue of privacy of individuals and said: "All we want to know is whether Pegasus was used....Wwe don't want to hamper national security. If Pegasus was used and ordinary citizens were targeted, it is very serious."
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