New Delhi: The Centre Monday told the Supreme Court that it does not wish to file a detailed affidavit in the “larger national interest” on a batch of pleas seeking independent probe into the alleged Pegasus snooping row as such issues cannot be a subject matter of public discourse.
The government told a bench headed by Chief Justice N V Ramana that the disclosure whether the country is using a particular software or not may cause “harm” and alert all potential targets, including terror groups.
Solicitor General Tushar Mehta told the bench, also comprising Justices Surya Kant and Hima Kohli, that government has “nothing to hide” and that is why the Centre has on its own said that it will constitute a committee of domain experts who will look into these allegations.
He said the issue whether a particular software is used or not used by the government cannot be a subject matter of public discourse as it has its “own pitfalls” and it would be better if target groups, like terror outfits, does not know what is being used to combat their activities.
“The insistence that it must come in public domain, please appreciate, the harm it may cause. Suppose, I say this particular software I am not using, it would alert all potential targets. It can be terror groups, it can be any other groups. If I say yes, I am using it, there would be different consequences,” he said.
“Your lordships are aware, every technology has its own counter technology to protect the system from being examined by the security agencies. Therefore, the only distinction is instead of the petitioners insisting that everything must come in public domain by way of an affidavit, I am saying let the experts go into it and place it before your lordships,” Mehta told the bench.
The law officer said the issue is important and the Centre has already expressed its willingness to constitute a committee of domain experts, who will not be connected with the government.
“Having considered the matter, it is the feeling of the government that such issues cannot be debated or placed on affidavit. It must be gone into by domain experts and the report will be placed before your lordships,” he said.
Referring to section 69 of the Information Technology Act, he said it permit interception which are being used for combating terror groups, terror funding, drugs, violence etc.
He said whether it is done by using software A or B cannot be subject matter of a debate by way of an affidavit.
“I will urge your lordships not to make it a part of public discourse. Therefore, we would not wish to place it on record by way of an affidavit in larger national interest,” he said.
The top court told Mehta that it had already made clear that it did not want the government to disclose anything which compromises national security.
The bench said it was reiterating that it is not interested in any manner to know anything about issues which concerns national security.
It said the court is only concerned about the allegations that some software has been used to snoop on some citizens including journalists, lawyers and others.
“I am not averse to and I must be serious about it. If some individuals are before your lordships claiming invasion of their privacy, the government takes it seriously. It can be gone into and it must be gone into and for which the government has suggested in its affidavit about formation of a committee,” Mehta said.
He urged the court to allow the Centre to constitute a committee of experts and said the petitioners, who are alleging that their phones were targeted by the spyware, may give their instruments to the panel which would examine everything and submit its report to the apex court.
“Sorry to say that you are going back again and again as if we want to know everything the government is doing,” the bench observed.
During the hearing, Mehta said the government cannot afford to be sensationalising the issue.
“There would be a marginal line of distinction between protecting the privacy of the citizens, which is the priority of the government, and entering into a zone where it may not be advisable for me to travel without compromising the national security,” he said.
He said there is statutory regime in place and interception per-se is not an illegal activity.
He said there is no question of doubting the credibility of the Centre appointed committee as the experts will have no relationship with the government and their report will be placed before the court.
He said a “facade” is created that the government is not telling the truth or hiding something from court.
Mehta said the government respects privacy of individuals and that is why it is saying that let these issue by gone into by a committee of experts.
The bench, after hearing the submissions advanced by Mehta and counsel representing the petitioners, said it would pass an interim order in the matter.
The Centre had earlier filed a limited affidavit in the top court saying the pleas seeking an independent probe into the Pegasus snooping allegations are based on “conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material”.
The pleas are related to reports of alleged snooping by government agencies on eminent citizens, politicians and scribes by using Israeli firm NSO’s spyware Pegasus.
An international media consortium has reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for surveillance using Pegasus spyware.
