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This story is from August 18, 2021

SC insists Centre file response affidavit to PILs seeking probe into Pegasus ‘snooping’

The Supreme Court on Tuesday compelled a reluctant Centre to file a response affidavit to PILs seeking inquiry into alleged misuse of military-grade spyware Pegasus to snoop on phones of journalists, politicians and activists despite the government's vehement reiteration of its readiness to divulge everything to a technical expert committee for scrutiny.
SC insists Centre file response affidavit to PILs seeking probe into Pegasus ‘snooping’
Supreme Court
NEW DELHI: The Supreme Court on Tuesday compelled a reluctant Centre to file a response affidavit to PILs seeking inquiry into alleged misuse of military-grade spyware Pegasus to snoop on phones of journalists, politicians and activists despite the government's vehement reiteration of its readiness to divulge everything to a technical expert committee for scrutiny.
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Spurning the court's suggestion that it file a detailed affidavit to avoid issuance of a formal notice, solicitor general Tushar Mehta told a bench of Chief Justice N V Ramana and Justices Surya Kant and Aniruddha Bose that the Centre's two-page affidavit covered the issues raised by the PIL petitioners. The government would never risk national security by filing an affidavit, which would come into the public domain, revealing the nature of software used to intercept communications by terrorist organisations with sleeper cells and other enemies of the country, he said.
The bench said it too would never want the government affidavit to contain any information that could even remotely compromise national security. "None of us would want to know the mechanism which the defence ministry or any other ministry has devised for the defence of the nation. We will not ask the government to disclose any such thing, irrespective of any petitioner wanting or not," it said.
"It is a limited issue before the court. There are some individuals and civilians, some of whom are eminent, who are alleging snooping/interception of their telephones. Telephones can be legitimately intercepted with the permission of a competent authority. What is the problem if that competent authority files an affidavit in the court saying whether or not the interception was done (by the government, with its knowledge and authorisation or illegally)?" the CJI-led bench said.
The SG kept reiterating the Centre's stand, sprinkled with examples about designs of terror organisations, that it was ready and willing to place all facts relating to the Pegasus software before a technical committee comprising neutral and independent experts who, in turn, could give a report to the SC. The CJI said, "We are not compelling you to file an affidavit giving this or that detail. We are simply issuing notice for you to file a response. What affidavit you want to file is your choice."

The bench gave the Centre 10 days to file its response. Issuance of notice would indicate that the SC is prima facie satisfied about the merits in the issues raised by the petitioners and is, hence, seeking a response through an affidavit. "Please take it from us, we do not want a word in that affidavit regarding defence or national security of the country. Those issues are beyond the domain of the court. We are reluctant even to know about it and we do not want the public to know about it," the bench said. The SC said that depending on the affidavit filed by the government, it will decide whether it would be required to appoint a technical expert committee or devise other methods (to inquire into the issues).
The SG gave a detailed explanation on the Centre's reluctance to make Pegasus and its use an issue for public debate. He said the government uses varied software to intercept communication to track terrorist activities and conspiracies by the enemies of the nation. "The nature of the software cannot be divulged as it would prove detrimental to national security," he said.
"For national security purposes and combating terrorism, various softwares are used. The petitioners want the government to divulge which software is used and which is not used. The moment this information is divulged, the terror networks may take preemptive or corrective steps. The government has nothing to hide. We cannot hide information from the court or some experts who are conducting an inquiry under the SC monitoring. We will place everything before that committee. This cannot be a subject matter of affidavits and public debate," the SG said.
He further said: "Tomorrow a narrative could be built by a web portal that military equipment and intelligence are being used for some illegitimate purpose and a PIL is filed in the SC seeking a direction to the military to reveal which software or equipment are used. If I (as SG) advise the government to divulge these details through an affidavit and make it an issue of public debate, I will be failing in my duties."
Mehta said, "I don't think anyone, much less the petitioners, should insist on that information. The government is ready to place all facts before a technical committee of neutral and independent experts. That committee can examine everything and give a report to the court on all issues — Whether we are using, what we are using and for what purpose are we using, if at all we have used. Everything will be before the committee."
"Would the SC as the highest constitutional court of the country expect the central government to divulge such details in an affidavit? The petitioners' plea is to inquire into the controversy. The government's affidavit answers that and says it has no difficulty in that. We will constitute a committee which will file its report before the court. It is a sensitive matter which needs to be taken sensitively. If we want to sensationalise it. If there is illegitimate use, no court can countenance it", Mehta asked.
With the SC vehemently clarifying that it does not even want to know the national security issues, the SG said, "Each terrorist organisation is aware that there will be some interception by the security agencies of every country. Suppose the government of any country says that Pegasus was not used. There are technologies which we are completely unaware of... The government is ready to divulge everything before a technical expert committee whose report will come before the SC."
"The terrorist organisations use several kinds of equipment to communicate with their sleeper cells. The moment any government of any country says they are using a particular software for interception purposes, the terrorist organisation will immediately change or modulate its communication software to such an extent that it is not compatible with the software the government is using for interception purposes," he said.
"The moment the government says Pegasus is being used, all apparatus which the enemies of the nation are using, I am told, can be reset to make their equipment non-compatible to Pegasus. These are the issues on which the government will place all facts before the technical committee and the government has no problem if the committee records everything and gives input to the court," Mehta said.
On behalf of petitioners, senior advocate Kapil Sibal said, "The security of the state is as important to the citizens of this country as it is to the government. We do not want the state to give us any information about any security aspects in respect of use of any device. That is not our intention." The CJI said, "We are also on the same page."
As parting argument, the SG requested the SC to permit the Centre to constitute a technical committee comprising neutral experts to examine the issue and that a report would be placed before the court. The CJI said, "We are not averse to appointing a committee. These are all later issues. We thought the government would file a detailed counter-affidavit. Let us see, we will also think about how to go about the issue. Whether to appoint a committee or not and what kind of committee, we will take a call."
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