The Modi government has, until now, stubbornly resisted any discussion in parliament on the Pegasus revelations.
Members of parliament exercising their right to ask questions on the case – which ought to be replied to with facts – are finding their attempts rebuffed at the first stage itself.
Now, reports say that a question on the Pegasus issue by Rajya Sabha MP of the Communist Party of India, Binoy Viswam, has been provisionally admitted. It is scheduled to be answered by the Union government on August 12, 2021, a day before the parliament session comes to an end.
While Viswam told this author that the Rajya Sabha Secretariat has not officially told him whether the question will be admitted or not, the Hindustan Times reported on Friday that the question is going to be disallowed. The rule being cited is that questions involving sub judice issues are not admissible, and given that the Supreme Court is hearing multiple petitions on Pegasus, this makes it a sub judice matter.
Viswam, however, told this author that he got a message from the Rajya Sabha Secretariat which stated that his question has been sent to the concerned ministry and only after getting necessary information on it will a decision be taken on its final admissibility.
He added that adopting such an approach for dealing with his question could mean that the scheduled date of answering it, August 12, would pass by, and a day after that, the Monsoon Session would conclude – effectively leaving no time for the question to be answered.
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The Modi dispensation, which talks about the importance of parliament, but Viswam says it is actually undermining it and subverts its functioning.
Now, let us consider the admissibility rule which bars questions on sub-judice issues. Rule 47(2)(XIX) of the Rules of Procedure and Conduct of Business of the Rajya Sabha states:
“It shall not ask for information on a matter which is under adjudication by a court of law having jurisdiction in any part of India”.
But does this rule apply to the question asked by Viswam? This is the text of his question:
“Will the Minister of External Affairs be pleased to state (a) the number of MoUs Government has entered into with foreign companies, the details sector-wise; (b) whether any of these MoU’s with foreign companies has been in order to curb terror activities through cyber security, the details of the same; and (c) whether Government has entered into a MoU with NSO Group in order to curb terror activities through cyber security across the nation, if so, provide details thereof?”
The Pegasus Project has reported the possible hacking of telephones belonging to several people including a a former Election Commissioner, opposition leaders, media personalities and corporate leaders. several petitions have been filed and the issues the Supreme Court is being asked to adjudicate on include the violation of the law of privacy, the assault on the integrity of institutions of governance and – above all – whether any criminality is involved under the Information Technology Act.
Indian Youth Congress (IYC) activists during a protest over Pegasus project issue near Parliament House during the monsoon session, in New Delhi, Tuesday, July 20, 2021. Photo: PTI
While adjudicating a writ petition the apex court will go into the legal issues, assess whether there has been any violation of the constitution and law and accordingly decide the case.
However, the text of Viswam’s question makes it crystal clear that it does not deal with any issues concerning contravention of the constitutional provisions or other rights.
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A plain reading of the question tells us that he wants factual details in order to ascertain if the Government of India has entered into a memorandum of understanding with NSO Group in Israel in order to curb terrorist activities through cyber security across the nation.
It is evident that the admissibility rule stating that “it shall not ask for information on a matter which is under adjudication by a court of law having jurisdiction in any part of India” does not cover the question asked by Viswam. Therefore, it is rather difficult to understand how this rule could be applied to decide if his question would be taken up or not.
The rule that sub judice matters should not be raised in either house of parliament is part of several rules of procedure and is applied in the context of discussions on any matter inside the house. However, there are precedents both in the Lok Sabha and Rajya Sabha when sub judice issues have been taken up by limiting the discussion to the facts of those issues – without going into the merits or other points which are subject matters of adjudication.
There are many instances, especially in the Rajya Sabha, when the chairman has allowed discussion on sub judice matters.
Several instances are documented in the published Rulings and Observations from the Chair brought out by the Rajya Sabha Secretariat.
For example, on December 12, 1994, immediately after the papers were laid on the table of Rajya Sabha, Biplab Dasgupta raised a point in the house regarding the settlement of the Babri Masjid issue. He did so by taking prior permission of the chairman.
Another MP, Vijay Kumar Malhotra, also joined the issue and made certain observations. MP Syed Sibtey Razi, however, raised a point of order regarding the desirability of discussing the Babri Masjid issue which was then pending in the Allahabad high court. The deputy chairman who was in the chair observed that the discussion should be confined to the subject matter of settlement and not any other matter which is under consideration of the court.
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In the Lok Sabha Secretariat’s publication, Practice and Procedure of Parliament, authored by M.N. Kaul and S.L. Shakdhar, it is categorically stated in the chapter on ‘Questions’ that “…[Q]uestions asking for mere statistics or factual information in a particular case and not about the merits of the case, even though relating to a matter sub judice, have been admitted as disclosure of such information does not affect the trial of the case.”
Accordingly, questions seeking factual answers on sub judice matters were permitted in the Lok Sabha in 1983, 1984, 1986, 1987 and 2002. The above publication also states that questions seeking factual information on matters sub judice or under investigation by statutory tribunals or other investigating agencies are normally transferred to the ‘written answers’ list instead of the ‘oral answers’ one.
With such clear examples of rules concerning the admissibility of questions on sub judice matters, it is surprising that an MP is facing hurdles on getting his question on the Pegasus issue answered.
The erection of such obstacles negates the basic principle of parliamentary democracy – accountability of the executive to the legislature.
S.N. Sahu served as OSD and press secretary to former President of India, K.R. Narayanan.