'Beating around the bush won't help', says SC on Centre's refusal to clarify use of Pegasus

The Supreme Court on Monday expressed its displeasure over the Union government's refusal to file a detailed affidavit, disclosing use of Israel's software by its agencies or not, for alleged snooping of citizens, saying the beating around the bush would not help in the matter.

A bench of Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli reserved its order on interim directions to be issued on a batch of petitions for independent probe into use of spyware, while telling Solicitor General Tushar Mehta that he has two-three days time to re-think over the stand taken by the Centre.

Mehta, at the outset, said the government, after having considered the issue, was of the view that use of a particular software can't be debated by filing an affidavit as it involved question of national security and might alert a potential terrorist or terror organisations to develop counter measures.

Maintaining that the government has nothing to hide, he reiterated its previous stand that a committee of domain experts, unconnected to the government, may be asked to examine the matter.

Read | Won't file detailed affidavit: GoI to SC on Pegasus row

"Whether a particular software was used or not can't be a subject matter of affidavit, since it has its own pitfalls," he said.

The court, however, said that it had already on August 17 clarified that it does not want government to disclose anything which compromises national security.

"We were only expecting a limited affidavit since there are petitioners before us who say their rights (of privacy) have been infringed…….you had to say whether it was done lawfully or unlawfully," the bench said.

The court cited a statement by the Minister concerned before Parliament. Had an affidavit been filed, we would have known where we stand on the subject and if any inquiry has been ordered, the bench pointed out, adding beating around the bush would not help.

Senior advocate Kapil Sibal, appearing for journalist N Ram submitted that it is unbelievable that the government said it would not tell the court about the use of spyware.

"Government says filing an affidavit is detrimental to national security but it is in fact detrimental to the process of law. It has already accepted use of Spyware in Parliament," he said.

Senior advocate Shyam Divan, appearing for another petitioner asked the court to direct Cabinet Secretary to file a disclosure affidavit as the government should be concerned if an external agency used the Spyware and if it was by government agency itself, then it was absolutely unconstitutional.

Representing another petitioner, senior advocate Rakesh Dwivedi said the court should itself constitute a committee of experts to examine the matter. Senior advocate Meenakshi Arora demanded setting up an SIT.

Senior counsel Colin Gonsalves said a retired or sitting judge of the Supreme Court should head the probe, and the government, which is a wrongdoer, can't be relied upon with the task. He also claimed that the government has been using these malware in a widespread manner as a Parliamentary committee report.

On July 18, an international investigative consortium reported that many Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 numbers that were potentially targeted by the Israeli company NSO Group’s phone hacking software.

A batch of petitions including those by advocate M L Sharma, CPI(M) MP John Brittas, N Ram, former IIM professor Jagdeep Chokkar, Narendra Mishra, Paranjoy Guha Thakurta, Rupesh Kumar Singh, S N M Abdi and Editors Guild of India were filed for independent probe into matter.

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