An August 5 reply by the government in the Parliament makes it clear that the Home Secretary is the competent authority to deal with legal interceptions.
However, the affidavit by the government in the Supreme Court , denying “all or any” allegations in the Pegasus case , is filed by the Information Technology Ministry.
In his August 5 reply to Rajya Sabha Member John Brittas’s question about “telephone interceptions”, Minister of State for Communications Devusinh Chauhan specified that the “Union Home Secretary is the competent authority in case of Central government and Secretary in charge of Home Department in case of States/Union Territories”.
The Minister said the Home Secretary’s power to approve legal interceptions is mandated under Section 5(2) of the Indian Telegraph Act,1885 read with Rule 419A of Indian Telegraph (1st Amendment of 2014) Rules, 2014 and Section 69 of the Information Technology Act, 2000 read with the Information Technology) Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
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Aware of the law, the Supreme Court has repeatedly urged the government, on two consecutive days of hearing on August 16 and August 17, to have the “competent authority”, that is the Union Home Secretary, address the Pegasus issue in a detailed affidavit.
But the government has so far objected to the suggestion. It has refused to be part of any “public debate” on the Pegasus issue or any interception, whatsoever, by having the Home Secretary file a “detailed affidavit”.
Solicitor General Tushar Mehta, for the Centre, has maintained that a public discussion in court on the software used for interception would alert terrorists and compromise national security.
The court has not bought the government’s argument. Though it assured the Centre that nothing would be done to compromise national security, the Bench headed by Chief Justice of India N.V. Ramana said it still has to address the concerns of citizens, including persons of eminence, who have complained to the court about the hacking of their mobile phones.
“The question here is that there are some persons of eminence who have come here, saying there has been interception of their phones… That can be done, but with the permission of the competent authority… What is the problem if that competent authority filed an affidavit before us?” Justice Surya Kant, on the Bench had asked the government on August 17.
“We are issuing simple notice… Let the competent authority say to what extent what information can be disclosed,” Justice Kant had said.
Senior advocate Kapil Sibal has clarified that the petitioners do not want the government to reveal anything that affects the defence of the nation.
“We want a straight answer. Did the government or any of its agencies use Pegasus? That question does not deal with national security. Again, if the government has used Pegasus, did they use it through the Home Secretary. That again does not concern national security... So, let them file an affidavit,” Mr. Sibal has submitted.
Mr. Sibal also wondered aloud in court in why an Additional Secretary from the Information Technology Ministry has filed the government’s affidavit in the Pegasus issue instead of the Home Secretary.
Mr. Sibal has rebutted the government affidavit on several points. One, he said it was filed by the Ministry of Electronics and Information Technology and not the Ministry of Home Affairs which authorises surveillance under the law. Secondly, the affidavit skips the part on whether the government or its agencies used Pegasus at all. Thirdly, he said if the government did not get the time to study the petitions and reply to them, then the court should give them the time. Fourthly, the senior lawyer countered that the affidavit did not even say whether the “facts and contentions” in the petitions were right or wrong.
However, the same reply on August 5 by Mr. Chauhan in the Parliament quotes the Ministry of Home Affairs (MHA) to inform that “records pertaining to lawful interception are destroyed regularly”.
“Such records are not being maintained by MHA,” the Minister had informed.
Published - August 18, 2021 12:53 pm IST
