1. Home
  2. English
  3. Pegasus Row: SC Admonish Centre for Retracing Steps to Refuse to File Detailed Affidavit
Pegasus Row: SC Admonish Centre for Retracing Steps to Refuse to File Detailed Affidavit

Pegasus Row: SC Admonish Centre for Retracing Steps to Refuse to File Detailed Affidavit

0

Manas Dasgupta

NEW DELHI, Sept 13: Retracing its earlier decision, the Centre highlighting the national security issue on Monday refused to file a detailed affidavit on the Pegasus Row whether it had used the Israeli spyware to snoop on some Indian citizens drawing the Supreme Court’s angry admonition for “beating around the bush.”

The government insisted that “it had nothing to hide” but cited “national security” to tell the Supreme Court it would not file a detailed affidavit in response to petitions seeking a formal inquiry into the Pegasus spyware scandal.

The three-judge bench headed by the Chief Justice of India N V Ramana decided to pass an interim order on the issue but still agreed to give a few more days’ time to the centre “in case it has second thoughts” and changed its mind to file a detailed affidavit as promised to the court earlier.

After the government reiterated its original stand, which it had changed subsequently, and maintained that such an affidavit in the apex court would be too public and compromise national security, the Supreme Court decided to pass interim orders after the government refused to respond, through a “detailed” affidavit.

The petitioners demanded that either the Cabinet Secretary file an affidavit or the court itself form a committee led by a sitting judge to probe the snooping controversy. A Bench of Chief Justice of India (CJI) N.V. Ramana, Justices Surya Kant and Hima Kohli said there cannot be any “beating around the bush” in the issue.

The CJI said the court had given the government a fair opportunity to file a detailed affidavit in order to get a clear idea of its stand in the Pegasus case. “We thought the government would file a counter-affidavit… now we will pass our interim orders,” he remarked.

However, after reserving orders, the court told Solicitor General Tushar Mehta, for the government, that he could mention the case if there were any second thoughts in the next few days before the pronouncement of the order.

Senior advocate Kapil Sibal, appearing for senior journalists N. Ram and Sashi Kumar, said the government’s refusal to file a detailed affidavit was “unbelievable.”

Mehta reasoned that a public discourse on whether a particular software was used or not would alert terrorists. He urged the court to allow the government to form a committee of “domain experts” who would look into the allegations of snooping orchestrated against citizens, including journalists, activists, Ministers, parliamentarians, among others. He assured the court that the committee members would have “no relationship” with the government and would place their report before the Supreme Court.

At one point, the CJI questioned the practicality behind the government’s insistence on refusing to discuss the Pegasus allegations in open court, saying that even if an expert committee was formed, its work and the report would eventually become public.

“Filing (an affidavit) and making it public discourse is not possible (as it) will affect national security… We cannot let terrorists know what software is used…” Solicitor General Tushar Mehta told the bench.

“No, Mr Mehta, last time we wanted an affidavit and that is why we granted you time and now you are saying this… we are going back again and again… we reiterate… we don’t want to know about national security. The issue is… we have citizens saying their phones were tapped,” the Chief Justice stressed.

“We have to do something. You have something else to say…” he asked Mr Mehta, to which the Solicitor General said: “No”. “Mr Mehta… beating about the bush will not solve the issue. Let us see what order we have to pass,” the Chief Justice said.

“The committee report will have to withstand the Supreme Court’s judicial scrutiny… I am not averse to an enquiry. The government takes individuals’ plea of violation of their privacy seriously. It has to be gone into, it must be gone into… It is the feeling of the government that such an issue cannot be placed on affidavit. It has to be gone through by a committee. It concerns national security,” he submitted. The government could not afford to “sensationalise” such an “important” issue, he stated. He objected to assertions by petitioners that the “government is denying protection to its own citizens” or is “assaulting democracy”.

Justice Kant said the court was equally concerned about national security, but it cannot turn a deaf ear to concerns about privacy raised by citizens. “We just wanted you to clarify whether their privacy was violated or not. Whether surveillance, if done at all, was after lawful permission. Was the interception done by any agency unlawfully? Should the government not be concerned if any “outside agency” had violated our citizens’ privacy?” Justice Kant asked the law officer.

The CJI remarked that the only thing the court wanted to know in the face of the allegations is if there has been any interception using methods other than those allowed under the law. In this connection, he also referred to the statement given in Parliament by former IT Minister Ravi Shankar Prasad about some WhatsApp users being affected by the alleged use of Pegasus.

“We are not interested in matters concerning national security. Our only concern, in the face of allegations made by petitioners about use of some software against citizens, is knowing whether any government agency has used any method of interception other than in accordance with law,” Chief Justice Ramana told Mehta.

Appearing for the petitioners, Senior Advocate Kapil Sibal opposed the prayer to allow the government to set up the committee. Stating that it was the allegation by the petitioners that the government is involved, he said, “Your Lordships should not allow the government to set up the Committee.”

The CJI told Mehta the committee report could also come in public domain. Mehta replied that the court could take a call on that depending on its assessment of the contents of the report.

Sibal referred to a 2019 parliamentary response of the government taking note of the use of Pegasus. “Why did they not take action against the use of Pegasus… because they were using it. The government is committed to protecting the rights of citizens, including their privacy,” he submitted. He urged the court to have the allegations investigated by a sitting judge.

Senior advocate Shyam Divan, for a petitioner, said the Cabinet Secretary should have filed a detailed affidavit.

Senior advocate Rakesh Dwivedi for journalist S.N.M Abdi, noted that the government through its Minister had recently “rubbished everything” in Parliament about Pegasus. “Now a committee formed by the government will do the same… Either the government should admit or deny whether they have spied or not or the Supreme Court should form a committee,” he said.

An annoyed Supreme Court earlier reminded the government it was only asked to respond to claims individuals’ phones had been hacked. “Last time also… we clarified nobody… is going to intervene in a way that affects national security…” Justice Surya Kant said, adding, “… there are claims of individual phones being hacked. Which agency has powers (to conduct surveillance on Indians and their phones) and whether it is authorised or not.”

“If individuals are saying their privacy was violated… it is serious and we are ready to go into it. We will form a committee of experts,” Mehta countered. But the court seemed unimpressed and pointed out “appointing a committee is not an issue”. It also pointed out such a report would normally also be a matter of public record.

“… purpose of the affidavit was supposed to be that we know where you stand. As per your own IT Minister’s statement in Parliament – that without subjecting the phone to technical analysis – it is hard to assess whether phone was hacked or not,” the court added.

Kapil Sibal said, “… we don’t want to hamper national security… (but) if Pegasus was used, and ordinary citizens targeted, it is very serious,” he said, pointing to reports German police had bought and used Pegasus. “Why can’t the Indian government not admit its use of Pegasus? Why should the government be allowed to set up a committee of its own?” he asked.

The government earlier filed a limited affidavit saying the petitions were based on “conjectures… or unsubstantiated media reports..”. That petition referred to a statement by IT Minister Ashwini Vaishnaw that said “checks and balances” in the Indian judicial and executive systems precluded such illegal activities.

The Pegasus scandal involves allegations that an Indian client of the NSO Group used the software to conduct illegal surveillance – as recently as July 14 – on 300+ opposition leaders, journalists and others, including Congress MP Rahul Gandhi, Trinamool MP Abhishek Banerjee, poll strategist Prashant Kishor, and industrialist Anil Ambani.

The NSO group of Israel, which owned Pegasus, has admitted that it was a spyware used to hack phones, but maintained that the group did business only with governments and government agencies. The Israeli company said it did not corroborate the list of potential targets reported by media companies around the world. The Indian government had earlier claimed that there was “no substance” to the reports of Pegasus being used by it against opposition leaders, journalists and others.

 

 

 

LEAVE YOUR COMMENT

Your email address will not be published.

Join our WhatsApp Channel

And stay informed with the latest news and updates.

Join Now
revoi whats app qr code