New Delhi: The Narendra Modi government Monday once again declined to file a detailed affidavit before the Supreme Court, revealing whether it used the military grade spyware Pegasus, manufactured by Israel-based company NSO.
Appearing before a three-judge bench led by Chief Justice of India N.V. Ramana, while the SC was hearing a batch of petitions on the Pegasus snooping row, Solicitor General Tushar Mehta said the information sought by them will not be in national interest.
He also said that the government will constitute a domain expert panel to look into the allegations that Pegasus was allegedly used to try and spy on prominent activists, journalists and lawyers in the country, and submit its report to the top court.
However, the visibly upset bench told Mehta that it did not want the government to put security issues in the affidavit.
“You have repeatedly said that you don’t want to put anything in the affidavit. We also don’t want security issues to be put here. Presumably, a committee has been formed and then the report will be submitted here. Now we have to look into the whole issue and decide something,” it said.
The SC then reserved interim orders after hearing the senior lawyers appearing for the petitioners, some of who claimed to have been put under surveillance by Pegasus.
The court said that it had assumed the Centre will file a detailed affidavit, especially after Mehta had sought more time last week and had got the matter adjourned to Monday.
“Now you are saying something else. We thought the government will file a counter-affidavit and will decide the further course of action. Now the only issue to be considered is the interim orders to be passed,” said the CJI.
The court said it will pass the order within two to three days and told Mehta that in case of a “rethink” on his part, he can mention the matter before the bench.
So far, the court has not issued any formal directions to the Centre on filing any affidavit.
With the orders now reserved, the bench will have to take a call on the petitioners’ interim prayers of directing the Cabinet Secretary to file an affidavit and constitute an SIT, independent committee or a probe panel headed by a retired judge to investigate the matter.
Software used for interceptions not for public discourse: SG
During the hearing, SG Mehta repeated his earlier arguments that divulging details about the software was a security risk. But the bench also repeatedly said that it was not forcing the law officer to share any information related to national security.
At the outset, Mehta had submitted that law enforcement authorities were allowed to intercept telephone calls subject to statutory provisions and guidelines.
According to him, questions on whether such interceptions were valid or not can be a subject matter before the court. However, which software was used for the purposes cannot be a matter for “public discourse” or stated in an affidavit, noted the solicitor general.
This, he added, can only be looked into by a domain expert panel that shall not comprise any government official as its member and will have experts from external agencies.
“Suppose I am saying that I am not using this software. Then it will alert the terror groups. If I say I am using this software, please remember, every software has a counter-software. The groups will take pre-emptive steps,” Mehta submitted.
On this, the court clarified it was seeking answers from the government only in the “face of the allegations made by some of the petitioners”.
“The petitioners claim their rights were violated through illegal use of the spyware. We are only concerned to know whether the government has used any method other than admissible under the law,” the bench said.
It further explained that the Centre has been asked to file a limited affidavit before it if there was any infringement of rights of citizens.
Mehta replied that there were no unauthorised interceptions and the government had nonetheless decided to constitute an expert committee to look into the matter.
Referring to an earlier short affidavit filed before the bench on 16 August, Mehta said the document has also mentioned that no interceptions have taken place in violation of the statutory regime.
The government has taken a similar stand before the Parliament as well, he said.