Pegasus- "We Don't Want A Single Word Relating To National Security, But There Are Civilians, Person Of Eminence Complaining Of Hacking": Supreme Court To SG

The Centre on Tuesday told the Supreme Court that its reply to the petitions over the Pegasus controversy is sufficient and that any further data that they should want to place for the Court's consideration may only be through the medium of an expert committee, to ensure complete confidentiality in view of the sensitivity of the matter.The petitioners had raised an objection to it as being "non-committal" on the question of whether the malware was used or not used by the government or its agencies or any private body, and had also expressed dissatisfaction with the route suggested by the government of appointing a committee of experts to inquire into the issue. The Court had described the affidavit of the UOI as a "limited affidavit", and the bench had suggested to SG Tushar Mehta to seek instructions and to introspect if the Centre wished to file a more detailed response.On Tuesday, the SG told the bench that the short affidavit by the Union is 'a considered response'. " I have filed an affidavit which is sufficient", he said."Are we to understand the Union does not want to say any more on this?", asked Justice Aniruddha Bose."Let me place for Your Lordships' consideration my stand. Whatever we respectfully have conveyed in the last affidavit, please examine from one point of view. I am before the highest constitutional court of the country. Mr. (Kapil) Sibal pointed out yesterday that there is a statutory mechanism in the form of an Act as well as the Rules which permits that you can have an interception as per the statutorily-prescribed procedure. Because this is necessary for national security purposes and to combat terrorism etc. All the prayers in the petitions were- 'Please enquire into this issue, let the Court direct an enquiry into the issue, let someone inquire into the issue'. Yesterday, they all asked for one thing- that we should declare whether Pegasus was used or not used. It is nobody's case that under the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, a software cannot be used for the purposes of national security and terrorism. They want the government of India to divulge which software is not used. No country would ever reveal which software they have used or not used! Then the persons who are being intercepted may take pre-emptive or corrective steps!"The SG continued to reinforce the Centre's willingness to constitute a committee of experts- "But we have nothing to hide. These are issues of national security – which is not used or which is used, but which we cannot hide from the court or from somebody who is an expert conducting an enquiry under Your Lordships' monitoring. We will place anything before that committee. This cannot be a subject matter of affidavit and public debate." "Tomorrow, there may be a narrative by some web portal that certain military equipment are used for some illegitimate purpose. A petition is filed by a person who has nothing to do with this issue and who says that now the military must declare whether this particular apparatus is used or not. If I advise the government to divulge this on affidavit, making it a public issue, I would be failing in my duty. I don't think that before the highest court of the country, the petitioners should be insisting on this, when their prayer is 'please enquire into the issue'. I am answering that prayer! We will have a committee of experts! Let the committee report to Your Lordships. Whether we are using, what we are using, for what we have used, if at all we have used-everything will be before the committee! I am not saying there would be government servants on that committee, but neutral people who are experts in the field!", he pressed.The SG elaborated on how the revelation of this information in the public domain would hamper national security- "Would Your Lordships, at the highest constitutional court of the country, expect the central government to expose such details on affidavit and make it a public issue? According to me, my affidavit suffices and nothing more is to be done. If it is a sensitive matter, it has to be taken sensitively. If we want to sensationalise it, that the government should do this or that, that it is 'A' government or 'B' government! It is our government! If there is some illegitimate use of anything, it cannot be countenanced. Your Lordships would never countenance it! There can be nothing fairer than this!"At this, Justice Surya Kant observed, "We are not considered with what the petitioners have said. All lawyers, appearing in the matter, as officers of court, You, as the Solicitor General, and us as the Court- none of us will want to compromise with the security of the nation. Whatever mechanism the defence Ministry has evoked, we will not ask you to disclose any such thing! Irrespective of any prayer or no prayer."However, the judge continued to state, "Here, the issue is very different. There are citizens, who are civilians, some of...

Pegasus- "We Don't Want A Single Word Relating To National Security, But There Are Civilians, Person Of Eminence Complaining Of Hacking": Supreme Court To SG

Mehal Jain

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