Centre’s stance in Supreme Court on Pegasus row amounts to questioning court’s wisdom and competence

The Modi government clearly seems to believes that ‘national security’ and the sense of insecurity of the ruling regime are one and the same thing and freely interchangeable. There was further evidence of this, if at all it was needed, in its response to the petitions relating to the use of Pegasus spyware when the Supreme Court considered the issue. But it is highly reassuring that the judges were not impressed.

The government’s response was objectionable on several counts. In the first place, the court described Solicitor General Tushar Mehta’s submission as a ‘limited affidavit’ and advised him to consult the Centre if it wanted to submit a more detailed one. Earlier, Mehta had sought to convey that he has made a ‘considered’ submission and that it was ‘sufficient’. But the court did not quite approve.

It is a pity that the government’s law officers, many of them luminaries in their own right, are being subjected to acute embarrassment for things that they are made to say due to the clumsy approaches of the government. They are often called upon to defend the indefensible.

For instance, when the government invoked ‘national security’ for refusing to divulge details about the use of Pegasus to snoop on political leaders, journalists and other prominent persons, the court had to remind the Solicitor General that the issue under consideration was quite different.

“Here, the issue is very different. There are citizens, who are civilians, some of them are persons of eminence, who are complaining of hacking or interception of their phones. Even though the Rules permit an interception even for civilians, that can be done only by the permission of the competent authority. There is nothing wrong with that. What is the problem if that competent authority filed an affidavit before us?” the court pointed out.

While citing the reasons for withholding information, Mehta sought to justify the government’s conduct. But his arguments, unfortunately, were most pedestrian. The argument ran thus: “Suppose, I am a terrorist organisation. I am obviously aware that there would be some interception by the security agencies of every country. I am using several apparatus for the purpose of communication with my sleeper cells etc. Suppose the central government of any country comes out and says that Pegasus was not used. The moment any government of any country says that we are not using a particular software on affidavit, I will change or modulate my software to such an extent that at least they are not compatible to what the government is using! The moment I say Pegasus is not being used, all the apparatus which the enemies of the nation are using can be reset and modulated so that it is not Pegasus-compatible!"

He argued that if the government says it is using Pegasus, or any other software for that matter, the terrorists, or whoever is being snooped around, would make their communications ‘Pegasus-proof’. If, on the other hand, the government says it is not using Pegasus, the terrorists then won’t have to bother about the Israeli spyware, which will make their task that much less complicated. So, the crux of the matter is that what the government says is more important than the capabilities of Pegasus.

That must be the most frivolous argument the Solicitor General may have made during his entire career, right from the day he enrolled himself as a lawyer to his current post as one of the most important legal officers of the Union government.

By now, Pegasus has become a household name, and everyone, including the ‘terrorists’ would know what it can do and what it cannot and, therefore, do not need to depend on what the government says. If it was an unknown software, with no clues available about its capabilities, he may have sounded somewhat more credible.

The government’s stand amounted to creating confusion about the whole issue, and probably overawe the court with the technicalities.

"There are technologies that we are completely unaware of! All the counsel here are responsible persons in their own right and none of them would want this! I am just on the inevitable effect of the government saying anything as sought by them!". That’s why, says the SG, he favours a committee of experts, who will first learn everything and then report to the court.

By arguing in favour of a committee of experts, to which the government, according to him, was ready to provide all the information required, he was indirectly challenging the court’s competence to comprehend such complicated matters.

It is up to the court to see if it requires help in handling the issue and certainly not for the government’s law office to suggest one. This amounts to questioning the court’s wisdom, and has to be seen whether it amounts to contempt.

(IPA Service)

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