Divulging information whether the country uses spyware like Pegasus or not would involve national security aspect as enemies of the nation or those indulging in terror activities would change or modulate their software, the Centre told the Supreme Court on Tuesday.
Solicitor General Tushar Mehta, appearing for the Centre, told a bench headed by Chief Justice N V Ramana that those involved in terror activities may take pre-emptive steps if the government divulges details of which software is used for various purposes including interception.
"Suppose, I am heading a terrorist organisation. I am using several apparatus for the purpose of communicating with my sleeper cells etc. The moment any government of any country says that no, we are not using a particular software, I will change my software or I will modulate my software to such an extent that at least they are not compatible with what the government is using,” Mehta told the bench, which also comprised Justices Surya Kant and Aniruddha Bose.
The apex court, which made clear that it did not want the government to disclose anything which compromises national security, issued notice to the Centre on a batch of pleas seeking independent probe into the alleged Pegasus snooping matter and posted the matter for hearing after 10 days.
During the arguments, Mehta said this can't be a subject matter of affidavit and public debate and the government has said in its limited affidavit that it will constitute a committee of experts to examine all the aspects of Pegasus issue.
"The moment I say Pegasus is not being used, all the apparatus which the enemies of the country are using can be reset in a module that it is not compatible. These are the issues which we will place before the technical committee and if the technical committee records everything and comes before your lordships, there is nothing wrong," Mehta said.
"Those who are in terrorist activities they may take pre-emptive or corrective steps," he added.
The bench said it does not want to know what mechanism the defence ministry or other ministries have evolved or set up for the defence of the nation and it is not asking the Centre to disclose any such thing.
Mehta argued that senior advocate Kapil Sibal, appearing for veteran journalists N Ram and Sashi Kumar who have filed a petition in the matter, had rightly said on Monday that there is a statutory mechanism and rules which allow interception and this is necessary to combat terrorism.
"Kindly visualise, tomorrow a narrative is built by some web portals that military equipment is used for some illegitimate purpose. Somebody, who has nothing to do with this, can file a petition. If I will advise the government that you file an affidavit on use of military equipment, then I will be failing in my duty," he said.
Mehta said the petitioners are seeking inquiry in the matter and the government has said that it will constitute a committee of experts.
He said the committee will consist of neutral experts and not government officials and the panel will file its report before the apex court.
"I don't think there can be anything fair than this," Mehta said.
The bench said it in not compelling the government to divulge anything which they do not want to.
"Tentatively, what we are thinking is without any further debate on the issue, we will issue notice before admission," the bench said and issued notice to the Centre.
The court is hearing a batch of pleas, including the one filed by Editors Guild of India, seeking independent probe into the matter.
They 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.
The Centre had Monday filed a limited affidavit in the apex court and said that 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".
It had said that position on the issue has already been clarified in Parliament by IT Minister Ashwini Vaishnaw.
With a view to dispelling any wrong narrative spread by certain vested interests and examining the issues raised, the government will constitute a committee of experts, it had said.
