The Centre has submitted before the Supreme Court that it cannot file an affidavit relating to the snooping allegation made against it in a batch of pleas by politicians and journalists, stating it is a matter of “national security” and such statements can’t be put on affidavit.
The bench led by CJI NV Ramana, and comprising Justices Surya Kant and Hima Kohli said, “We are not interested to know about national interest issues but we are only on the face of allegations some software was used to snoop certain citizens like lawyers etc. We wanted to know if it’s done to see if it’s permissible under law.”
Solicitor General Tushar Mehta said, “I am not averse to certain individuals claiming invasion of privacy. The point is, making this part of the affidavit and making it public is a matter of concern. The committee can look into it and file a report before your lordships. The question is whether it’s Pegasus or something. Our stand is putting this into affidavit will not serve national interest.”
The CJI said, We are not interested to know what are you doing to protect the country. But we are concerned about the privacy of the citizen. Appointing a committee or making inquiry is not the question here. if you file an affidavit then we know where you stand. According to your IT Minister’s statement on which you relied heavily, your minister admitted that the government has taken note of software being used. It is with reference to “such services are openly available to anyone.”
“This is not the statement by Minister, it is by the company who owns the technology,” the SG pointed out.
The CJI said, “There is a procedure established under law which allows interception too. We don’t want to say anything further. There are 3 steps in the minister’s statement, it requires probe….It is available to anyone and can be used by anyone.”
Senior Advocate Kapil Sibal, appearing for senior journalists N. Ram and Sashi Kumar, submitted before the Court that the burden of protection of the fundamental rights of citizens is on the State. The State cannot be adversarial in those issues, and it can’t be like that “we can’t tell you anything”.
“The State is now telling you, that it can’t tell you (file affidavit) in the interest of national security. It is not detrimental to “National Security” but it is detrimental to “Privacy”. If they don’t file an affidavit, lordship can take it seriously,” Sibal argued.
“This spyware is, per se, illegal. It can only be used by appropriate procedures. They have accepted it openly. They haven’t taken any action because they are using it against the citizens of India,” he added.
“It is unbelievable that a Government of India tells the Court that we can’t tell you anything,” said Kapil Sibal.
He further stated, “Nothing has been done since 2019, and we have given names of Indian citizens whose phones were hacked. The Pegasus was used in Germany for anti-terrorism activities. The Government wants to hide a fact. Why (does) it want to set up a committee of its own? It’s an admitted fact.”
Senior Advocate Shyam Divan, appearing for Jagdeep Chhokar, submitted, “It is duty of the State to protect Indian citizens from this malware. The Cabinet Secretary’s responsibility extends to all that…An affidavit is essential as in this court of law we relying on the pleadings.”
“This is a complete assault on democracy and hence we say please grant our interlocutory prayers. We request cabinet secretary file an affidavit. We have filed an additional affidavit here which has various decisions,” he said while concluding his arguments.
After the arguments, the Court has reserved its interim order to be passed within two-three days and told the Centre that beating around the bush would not take the issue anywhere.
“We will pass some interim order,” Chief Justice Ramana told Solicitor General Mehta.
The Government cannot tell which software the government is using for surveillance because it will alert terrorists, said the SG.
CJI Ramana said, “We have made it clear that we don’t want to create any threat to national security. The petitioners also don’t want that. You are repeatedly saying you don’t want it in the public domain. Question is, assume a expert committee consider those issues and the report shall be placed before us, can’t the same come in public domain?”
The SG replied, “If I say we never used Pegasus, (are) they going to withdraw the petitions?”
CJI Ramana said, “Mr Mehta, we will pass the order within two-three days. Mr. Mehta, if you have any rethinking you can mention before this court.”