Pegasus protest.

Pegasus protest.

Modi govt dodging on Pegasus; refuses to submit affidavit to SC

Can't be put on affidavit: Centre to SC; govt beating around the bush: SC

Agency Report | New Delhi | 13 September, 2021 | 11:00 PM

After the Centre's denial to file a detailed affidavit clarifying whether Pegasus spyware was used or not, the Supreme Court reserves its order on a batch of petitions seeking an independent probe into the alleged Pegasus snooping case.

A bench headed by Chief Justice N.V. Ramana and comprising justices Surya Kant and Hima Kohli said the court will pass an interim order in the next few days and told the Centre that beating around the bush would not take the issue anywhere.

“Beating around the bush…we will pass some interim order,” the chief justice told Solicitor General Tushar Mehta, representing the Centre.

The Centre informed the bench that it is not going to file a detailed affidavit, after taking time twice to take a decision, whether it will file an affidavit or not on a batch of petitions seeking inquiry into alleged use of spyware Pegasus.

Mehta submitted that government can constitute technical committee of independent domain experts, who can examine the petitioners’ allegations that their phones were affected by Pegasus. Centre said this committee can submit its report to the top court.

The top court pointed at the response of former Minister for Electronics and Information Technology in Parliament in 2019. However, Mehta highlighted a recent statement made by Minister of Railways, Communications and Electronics & Information Technology of India on the floor of the Parliament clarifying the government’s stand.

A battery of senior advocates — Kapil Sibal, Rakesh Dwivedi, Dinesh Dwivedi, Shyam Divan and Meenakshi Arora –representing various petitioners objected to the Centre’s stand on the matter.

Sibal, representing veteran journalist N. Ram, said the government should clarify whether it used Pegasus or not? Sibal added that it is unbelievable that the government said it would not tell the court about the use of spyware.

“We thought government will file a counter affidavit. We are considering some interim order or some other order, we have to pass,” the bench noted during the hearing.

Divan contended that a detailed affidavit should be filed at the level of cabinet secretary. He further added that the government should be concerned if an external agency used the spyware and if it were a government agency, then it was absolutely unconstitutional.

Senior advocate Rakesh Dwivedi questioned the credibility of the expert panel formed by the government to examine the issue.

Mehta submitted, “Nobody is denying or disputing. There are sensitive issues involved. We must get to the core issue. Let the expert panel go into it.”

The Chief Justice clarified that the court is also not keen on government disclosing any information which compromises the national security. The bench noted that if government were to file an affidavit, then it would have known “where do we stand on the subject”.

Senior advocate Colin Gonsalves said a retired or sitting judge of the Supreme Court should head the probe, and the government, which is a wrongdoer, cannot be relied upon with the investigation.

Meanwhile, the Centre stating national security reason told the Supreme Court it does not wish to file a detailed affidavit clarifying whether Pegasus spyware was used or not as it responded to a batch of petitions seeking independent probe into the alleged Pegasus snooping.

Solicitor General Tushar Mehta, representing the Centre, submitted before a bench headed by Chief Justice N.V. Ramana that the government will disclose all details in connection with the Pegasus case before a panel of domain experts but not on an affidavit for national security reasons.

Mehta emphasized that there are terror organizations, which better not know which software is used to combat terror etc. “It has its own pitfalls,” he added.

The Centre reiterated that it has “nothing to hide” and emphasized that the government has on its own said it will constitute a committee of domain experts, who are not connected with the government, to examine spying allegations.

“Such issues of whether Centre was using Pegasus or not cannot be debated in affidavits and can be looked into by domain experts,” he added.

Mehta told the bench that also comprised Justices Surya Kant and Hima Kohli, that whether a particular software is used or not by the government cannot be brought out in public domain for a discussion, and the panel of independent experts can place their report before the top court.

As the bench pointed to Mehta that it has given him time so that government can file an affidavit in the matter. “Such issues cannot be brought on an affidavit,” Mehta submitted.

The bench emphasized that it had already clarified that it does not want government to disclose anything which compromises national security. The bench observed, “We were only expecting a limited affidavit since there are petitioners before us who say their rights have been infringed upon. You had to say whether it’s done lawfully or unlawfully.”

The hearing is still in progress.

The top court on September 7, granted time to the Centre to decide on filing a further response on the petitions. Mehta had informed the top court that due to some difficulties he could not meet the officials concerned to take a decision on the filing of the second affidavit. (IANS)