The Court’s order on Pegasus still falls short

Synopsis: Instead of constituting a committee to inquire into the allegations made in the Pegasus case, SC could have made use of other prerogative powers available to it.

Introduction

On October 27, the Supreme Court of India appointed an independent committee to inquire into the Pegasus case. But the court’s order still falls short of delivering justice.

What should have the SC be done instead?

In place of constituting a committee, SC could have taken the following steps:

– Frame a set of questions: the Court could have framed a set of specific questions demanding answers from the state. These might have included the following: did the Government purchase Pegasus? Did it use the software on the phones of Indian citizens? If so, was such use backed by law? What were the reasons for which the use was authorised?

– Issuing of the writ: If answers to these questions were still not forthcoming, the Court could have drawn what is known as an “adverse inference”. A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it. The Court then can grant any number of remedies: it can make a declaration that the Government was wrong, and it can issue a writ compelling the Government to disclose all materials relevant to the purchase and use of Pegasus.

What is the way forward?

The cases are next scheduled to be listed in 8 weeks’ time. If SC finds that the Government has been delaying or obstructing the committee, it must proceed to issue a mandatory order to the state compelling it to perform its constitutional duties.

Source: This post is based on the article “The Court’s order on Pegasus still falls short” published in The Hindu on 1st Nov 2021.