Centre cites nat'l security, says won't file detailed affidavit; SC reserves order

New Delhi: The Supreme Court on Monday reserved its interim order on petitions seeking a probe into allegations of unauthorised surveillance using the Pegasus software, with the Centre reiterating that it was ready to have all questions gone into by a committee of experts, but did not want to put it in the public domain for reasons of national security.

"We are reserving and will pass an interim order. It might take 2-3 days to pass the orders," a Bench headed by Chief Justice of India N V Ramana said after hearing the petitioners and Solicitor General Tushar Mehta.

"We have nothing to hide. But there are issues, there are sensitive issues involved where certain things are not placed in public domain by way of an affidavit. But respecting the privacy of individuals, on its own the government is offering that let it be gone into. And the report comes before your Lordships that ensures credibility. The Committee will be answerable to your Lordships," Mehta told the Bench also comprising Justices Surya Kant and Hima Kohli.

The bench pointed out that it had already clarified that it did not want to know info that concerns national security.

The CJI remarked that the only thing the court wanted to know in the face of the allegations is if there has been any interception using methods other than those allowed under the law. In this connection, he also referred to the statement given in Parliament by former IT minister Ravi Shankar Prasad about some WhatsApp users being affected by the alleged use of Pegasus.

CJI Ramana pointed out that the reason why the government was given time on the last occasion was to enable them to introspect if they wanted to file another affidavit.

The government, however, in the hearing on Monday, expressed its refusal to share the affidavit, and instead prayed that a committee of domain experts should look into the petitions filed.

The Solicitor General, appearing for the government, said: "I am not averse to certain individuals claiming invasion of privacy. This is serious and must be got into. The question is whether it's Pegasus or something else. Our stand is putting this into affidavit will not serve national interest."

He also maintained: "Such issues of whether Centre was using Pegasus or not cannot be debated in affidavits and can be looked into by domain experts... whether it has been done by A software or B Software cannot be said on affidavit."

Instead, the government insisted on being allowed to form a committee of domain experts without its own members.

Reacting to the SG, senior advocate Kapil Sibal, representing senior journalists N Ram and Sashi Kumar, said the Union government has a duty to provide facts relating to violation of fundamental rights, adding that a refusal to provide confirmation about whether the government used Pegasus is "detrimental to justice".

He further said that it was "unbelievable" that the government said it would not provide information to the court.

Sibal noted that Germany had admitted to the use of Pegasus, so it cannot be said the Indian government cannot disclose its own usage or non-usage of the software due to security concerns.

He added that if a committee must be set up, it must be the court, and not the government, which instates it.

Justice Surya Kant added: "Last time also... we clarified nobody... is going to intervene in a way that affects national security. There are claims of individual phones being hacked. Which agency has powers (to conduct surveillance on Indians and their phones) and whether it is authorised or not."

Justice Ramana was further quoted as saying: "We had given fair opportunity to Centre to make a statement. Now they don't want to file an affidavit. So, we will pass an order like that... what to do?" Bar and Bench reported. The CJI further added: "We thought if something comes to us, we can at least take a call as to what type of enquiry we can order. Now we have to look at the whole issue and decide what to do. Beating around the bush is not the issue..."