'Centre Thought They Could Bludgeon The Court Like Earlier That We Say This & The Court Will Accept It' : Justice Deepak Gupta On Pegasus Order

The Supreme Court's order in the Pegasus case is getting widely hailed. Yesterday, a 3-judge bench of the Supreme Court of India of Justices N.V.Ramana, Surya Kant and Hima Kohli ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activists, etc using the Pegasus software.The functioning of the committee will be overseen by retired Supreme Court judge Justice RV Raveendran and the Technical Committee will comprise three members. The Court has asked the committee to investigate the matter expeditiously. The matter will be listed after 8 weeks. LiveLaw spoke to Justice Deepak Gupta, former Supreme Court judge, N.Ram, former Chief Editor of 'The Hindu' and one of the petitioners in the Pegasus case, Advocate Vrinda Bhandari and Apar Gupta from the Internet Freedom Foundation on the significance and implications of the Court's orders directing that an independent committee be set up to probe the Pegasus issue. Justice must not only be but seen to be done: Supreme Court The order is being described as being "a historic decision" and "watershed in the history of the court" for a number of reasons. First and foremost being the fact that, despite strong arguments made by the respondent-government of India that Court allow the Union of India to constitute an Expert Committee which would be under its supervision, the Apex Court has gone ahead and set up a committee under the aegis of a retired judge of the Supreme Court of India. Speaking to LiveLaw, Retd.Justice Deepak Gupta echoed the sentiment- "I think the main message that goes out from the setting up of the committee is that the Supreme Court said we are not going to listen to the Government of India that says we are going to set up a committee of experts." That an independent committee headed by a retired judge of the Supreme Court be set up to investigate the allegations had been a common demand of all the petitioners in the case. N.Ram feels this has been a "vindication" of the petitioners demands. "The position we have taken has been vindicated in so far as two basic prayers are concerned- one is to get the government to state on affidavit whether they've used Pegasus against individuals or not. The second one is the prayer to set up an independent committee by the Supreme Court, headed by a retired judge and that has been accepted. The government's counter proposal to have its own counter-committee has been rejected because there will be an issue of bias. The order notes that not only must justice be done but also be seen to be done," he adds. While making note of the compelling circumstances that weighted the court while passing the order, the Bench noted that "we decline the Respondent-Union of India's plea to allow them to appoint an Expert Committee for the purposes of investigating the allegations, as such a course of action would violate the settled judicial principle against bias, i.e., that justice must not only be done but also be seen to be done." 'National security' cannot be a mere bugbear that the judiciary shies away from, by virtue of its mere mentioning: Supreme Court Another aspect of the Supreme Court order which has been a cause of much celebration is its observation that "the Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns....the mere invocation of national security by the State does not render the Court a mute spectator." It may be noted that during prior hearings, Solicitor General Tushar Mehta had argued before the Bench that the instant matter was related to national security, and hence cannot be made a subject matter of a judicial debate or public discourse. He had further expressed the Centre's unwillingness to file any additional affidavit divulging whether the Centre had used any particular software for security purposes by citing concerns of national security. The Apex Court has made it very clear that while the scope of judicial review is limited when it comes to issues of national security, "this does not mean that the State gets a free pass every time the spectre of "national security" is raised...no omnibus prohibition can be called for against judicial review." This can be seen as a marked departure from previous instances where the invocation of a blanket 'national security' argument by the government has stone-walled any inquiry at the preliminary stage itself. Claiming a blanket exemption on the grounds of 'national security' was problematic not only from the perspective of the fundamental rights of the citizens but also from the evidentiary point of view. As Justice Gupta points out- "we've had the Evidence Act for ages. The government has the right to claim privilege and ...

'Centre Thought They Could Bludgeon The Court Like Earlier That We Say This & The Court Will Accept It' : Justice Deepak Gupta On Pegasus Order

Sneha Rao

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