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The Supreme Court on Tuesday observed that it is “not averse" to setting up an expert committee to look into the alleged surveillance of Indian citizens with Pegasus spyware but expects the government to bring sufficient facts on record regarding the interception regime in India.

The government, however, maintained that any disclosure on its using or not using Pegasus spyware will hamper national security and insisted that it will divulge such information only before the proposed committee, which, it said, can report to the top court.

In line with its response a day ago, the government said all interceptions were being done in accordance with the statutory procedure, and it would not wish to put out in the public domain details of the software used for lawful surveillance by filing any additional affidavit.

Following the Centre’s refusal on Tuesday to file any additional affidavit confirming or denying its use of Pegasus, the bench, headed by Chief Justice of India N.V. Ramana, issued a formal notice to the government on a clutch of petitions, demanding a court-monitored independent investigation into the alleged snooping.

The bench, which included justices Surya Kant and Aniruddha Bose, asked solicitor general Tushar Mehta to consider filing a detailed reply in 10 days while observing that the court will ponder over the future course of action in the meantime. “We are not averse to a fact-finding or investigating committee...We will issue notice, and then we will take a call on whether a committee is to be appointed—whether it is to be a committee of experts or some other committee," said Ramana.

During the proceedings, the bench asked Mehta repeatedly whether the government would want to apprise the court on charges related to illegal interception of phones through Pegasus by adding to what their three-page affidavit had stated a day ago.

Mehta said, “They (petitioners) want the government of India to divulge which software is not used. No country would ever reveal which software they have used or not used. Then the persons who are being intercepted may take pre-emptive or corrective steps. Therefore, this cannot be a subject matter of affidavit and public debate. There are issues of national security."

He added: “We have nothing to hide...We will have a committee of experts. Let the committee report to your lordships. Whether we are using, what we are using, for what we have used, if at all we have used—everything will be before the committee. And the committee will eventually report to this court."

The bench, however, insisted: “None of us will want to compromise with the security of the nation or defence. 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... What is the problem if that competent authority filed an affidavit before us?"

It added: “All that we are saying is that we will issue a simple notice in this petition. Let the competent authority under the rules (Union home secretary) take a decision as to what extent, what information is to be disclosed. As regards the course of action, then we will evolve and see what is to be done and what is not to be done."

The solicitor general responded citing concerns of national security and said any statement by a country about using or not using particular spyware will prompt the terrorist organizations to modify their communication modules accordingly and escape tracking.

“But the government does not mind saying it before an expert committee which would come before your lordships who can consider thereafter what steps need to be taken... We are not saying we won’t tell it to anyone. We are saying we will not say it publicly," asserted Mehta.

At this, the CJI remarked: “We are not compelling you to divulge what you don’t want to disclose. Tentatively, what we are thinking is we will issue notice before admission, and we will wait for some time. Then, depending upon what transpires, we can look into the aspect of constituting a committee or what else to do. That is an option unless you want to say something else."

Mehta replied by requesting the court to consider permitting the government to constitute a committee of experts. “We are not averse to a fact-finding or investigating committee. But that is not the issue. We will see as to that when we reach that point...We thought the competent authority would be able to reply comprehensively, but now you have filed this (short) affidavit. Let us think how to go over with this matter," retorted the chief justice.

Senior advocate Kapil Sibal, appearing for senior journalists N. Ram and Sashi Kumar, submitted that security of the nation is as important to the petitioners as to the government, but for enabling the case to proceed, it was incumbent upon the government to disclose if Pegasus was used as a technology.

The CJI replied: “We are on the same page as far as concerns about national security are concerned. Let the matter come after 10 days."

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