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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
17 Aug 2021 8:40 AM GMT
Pegasus- We Dont Want A Single Word Relating To National Security, But There Are Civilians, Person Of Eminence Complaining Of Hacking: Supreme Court To SG
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"Here, the issue is very different. There are citizens, who are civilians, some of them are persons of eminence, who are complaining of hacking or interception of their phones. Even though the Rules permit an interception even for civilians, that can be done only by the permission of the competent authority. There is nothing wrong with that. What is the problem if that competent authority filed an affidavit before us? "

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...

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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 them are persons of eminence, who are complaining of hacking or interception of their phones. Even though the Rules permit an interception even for civilians, that can be done only by the permission of the competent authority. There is nothing wrong with that. What is the problem if that competent authority filed an affidavit before us? In that affidavit, we don't even want a single word on any aspect that relates to the security of the nation! Please take it from us that that is totally outside the domain of these proceedings! Like you were reluctant for it to come into the public domain, so are we! You must keep it confidential and secret."
Justice Surya Kant said,
"All we are saying is that we will issue a simple notice in this petition. Let the competent authority under the Rules (Home Secretary) take a decision as to what extent what information is to be disclosed. As regards the course of action, then we will evolve and see what is to be done and what is not to be done"
The SG continued to illustrate the concerns of national security- "
Suppose, I am a terrorist organisation. I am obviously aware that there would be some interception by the security agencies of every country. I am using several apparatus for the purpose of communication with my sleeper cells etc. Suppose the central government of any country comes out and says that Pegasus was not used. The moment any government of any country says that we are not using a particular software on affidavit, I will change or modulate my software to such an extent that at least they are not compatible to what the government is using! The moment I say Pegasus is not being used, all the apparatus which the enemies of the nation are using can be reset and modulated so that it is not Pegasus-compatible!"
"There are technologies that we are completely unaware of! All the counsel here are responsible persons in their own right and none of them would want this! I am just on the inevitable effect of the government saying anything as sought by them!", he added.
The SG then reverted to the effectiveness of a committee of experts-
"But the government does not mind saying it before an expert committee which would come before Your Lordships. These are the issues which we will place before the technical committee and the committee records everything and comes before Your Lordships! There is nothing wrong with it. The difference is only this- whether what is intended by Your Lordships should come by way of an affidavit in public domain or by way of an expert committee's inputs by way of a report before the Court and Your Lordships can consider thereafter what steps need to be taken. I am not for a second saying that I will not tell it to anyone. I just don't wish to tell it publicly!"
"I wish to make it clear so that there is no misunderstanding or wrong communication- it is not my case that I don't wish to divulge by way of an affidavit or otherwise. The limited point is- let me say that before a committee of experts whose report comes before Your Lordships", repeated the SG.
At this, Chief Justice N. V. Ramana remarked,
"We understand that. We are not compelling you to divulge what you should not want to. We are not saying you have to file a counter-affidavit on all minutes, on all these issues. What we are thinking is that we will issue 'notice before admission'. Then, depending upon what transpires, we can look into the aspect of constituting a committee, or what else to do. That is an option unless you want to say something else"
At this, the SG repeated that what course the Court would consider to follow is entirely the Court's prerogative. "Your Lordships may consider permitting us to constitute a committee and we will place it before Your Lordships the report of experts. I can assure you it will not be government experts"
"We are not averse to a fact-finding or investigating committee. But that is not the issue. We will see as to that when we reach that point. These are petitions before us right now and we are the admission stage. We thought the competent authority would be able to reply comprehensively but now you have filed this affidavit. Let us think how to go over with this matter. I need some input from my brothers also. But presently this is what we are thinking- We will issue notice and then we will take a call- Whether a committee is to be appointed, whether it is to be a committee of experts or some other committee", said the CJ.
The bench then proceeded to dictate its order, issuing notice before admission to the government of India. List the matter after 10 days, the CJ said, "Meanwhile, we will think of the further course of action"
The Petitioners
Senior Advocate Rakesh Dwivedi, for S. N. M. Abdi, the journalist whose name was in the potential list of Pegasus targets, remarked, "If Your Lordships are issuing notice, that is fine"
Senior Advocate Kapil Sibal, for former Editor-In-Chief of The Hindu, Mr N. Ram, submitted, "On behalf of the petitioners, I want to say that the security of the State is as important to the citizens of this country as it is to the State. We do not want the State to give us any information about any security aspects in respect of the use of any device. That is not our intention. That is not even the petition."
"We are also on the same page as you", said the CJ.
Mr. Sibal continued, "We just want to know whether Pegasus as a technology was used or not".
Senior Advocate Dinesh Dwivedi prayed, "In the interest of the journalists who are affected, if something may fall from Your Lordships to give them some solace, some protection?"
"Sorry", said the CJ.
Senior Advocate Shyam Diwan, for activist Jagdeep Chhokkar, prayed for notice on an IA for direction to the Cabinet Secretary to respond by way of an affidavit.
Objecting to this, the SG argued, "He cannot decide whether the cabinet secretary should file! Your Lordships have said 'file or don't file'. He says who will file will also be decided by him.
The bench remarked that "it is not for them (the petitioners)" to say so.
"I am also entitled to make submissions. I am requesting the court if you consider it appropriate...", began Mr. Diwan.
"Please, Mr. Diwan!", interjected the CJ, cutting across.
Then, Mr. Diwan, thanking the bench for reading all affidavits in the matter, prayed that they ought to be given an opportunity to make a full presentation on all points in all affidavits. "For example, there is a specific statement that we have made that the technology which is being deployed...", he sought to illustrate.
The CJ commented, "There are hundreds and thousands of pages in every matter. Can we allow the counsel to read all? You know the procedure which the Supreme Court follows. If we are missing anything, you can supplement. We have other matters also, not only this."
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