New Delhi: Ruling that the “state cannot get free pass every time” by raising national security concerns, the Supreme Court Wednesday constituted a three-member technical committee to investigate the Pegasus snooping allegations.
The committee comprising experts in cyber security, digital forensics, networks and hardware would be overseen by a supervisory panel led by former Supreme Court judge Justice R.V. Raveendran, said a three-judge bench led by the Chief Justice of India (CJI) N.V. Ramana.
The former judge will be assisted in this task by Alok Joshi, former IPS officer (1976 batch) and Sundeep Oberoi, Chairman, Sub Committee in International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee.
The members nominated in the technical committee are Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Prabaharan P., who is a professor with the School of Engineering, Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Ashwin Anil Gumaste, Institute Chair Associate Professor, IIT-Bombay.
While pronouncing the order, the Supreme Court said the terms of reference of the committee, the procedure to be followed, and other details regarding its functioning are given out in detail in the judgment.
The court requested the committee “to prepare the report after a thorough inquiry and place it before the court, expeditiously.”
“Justice Should not only be done but seen to be done,” the court said.
The bench will again hear the matter after eight weeks.
The committee’s role
The committee, the top court said, is tasked with investigating whether the Pegasus spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations and intercept information.
The other aspects to be probed are details of the victims and/or persons affected by such a spyware attack, what steps the government took after reports were published in 2019 about the hacking of WhatsApp accounts of Indian citizens, using Pegasus, whether any central or state government agency acquired the software, if any governmental agency used the software then under what law, rule or guideline was such deployment made, and any other connected or incidental issues the committee may deem fit to investigate.
According to the judgment, the committee will also make recommendations regarding enactment or amendment of existing law and procedures surrounding surveillance and for securing an improved right to privacy, on how to enhance cyber security of the nation and its assets, to ensure citizens’ right to privacy is not invaded, the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance, to set up a well-equipped premier agency to probe cyber security vulnerabilities and any ad-hoc arrangement that may be made by the court as an interim measure for the protection of citizens’ rights, pending filling up of lacunae by the Parliament.
Panel set up to probe ‘truth or falsity’ of claims
The CJI began pronouncing the judgment with a quote from George Orwell’s 1984: “If you want to keep a secret, you must also hide it from yourself.”
The court rejected the Union of India’s plea to allow it to appoint an expert committee “as such a course of action would violate the settled judicial principle against bias.”
“We have chosen renowned experts to be a part of this committee,” it said, adding: “We are setting up a committee to probe truth or falsity of the allegations.”
The order came on a set of petitions demanding an independent inquiry into the Pegasus snooping row.
The controversy made headlines in July this year after an international consortium of media outlets released a series of reports claiming ministers, politicians, activists, businessmen and journalists were among the 50,000 numbers that were allegedly targeted by Pegasus, an Israeli company’s phone hacking software.
The reports further claimed that the intrusive malware corrupts the potential target’s phone camera and microphone and snoops on the person’s private data, converting the phone into a pocket spy.
“Some of the petitioners are direct victims of Pegasus. it is incumbent upon the Centre to seriously consider the use of such a technology. I have discussed the need for protecting right to privacy in India,” the CJI said while reading out portions from the verdict.
‘State cannot get free pass every time’
The court lamented the fact that the Centre has failed to give a satisfactory response to its queries and had even declined to file a detailed affidavit in response to the petitions.
“This court gave ample time to Centre to disclose all information regarding the Pegasus attack since 2019. However, only a limited affidavit was filed throwing no light. If Centre made stand clear the burden on us would have been less,” the court said.
It turned down the Centre’s limited defence that it can intercept phones on the ground of security.
“The state cannot get free pass every time by raising national security concerns. No omnibus prohibition can be called against judicial review. Centre should have justified its stand here and not rendered the court a mute spectator,” it observed.
Since the Centre provided no “specific denial”, the court said it had no option “but to accept the submissions of petitioner prima facie” and “appoint an expert committee whose function will be overseen by the Supreme Court.”
The bench admitted it was not satisfied with the writ petitions based on newspaper reports and said it “discourages PILs which are based on media reports.”
However, the fact that petitions were filed by ones who have been direct victims prompted the bench to issue the directions.
“The solicitor general had suggested that many such reports are motivated, however, such omnibus oral submissions cannot be accepted,” the court said.
‘Citizens need to be protected from violation of privacy’
The court also noted down the compelling circumstances that have weighed with it to pass the order. Amongst them are the need to examine whether the Right to Privacy and Freedom of Speech have been impacted, as alleged, the potential chilling effect of such a row, and no clear stand taken by the Government of India regarding actions taken by it.
“Seriousness accorded to the allegations by foreign countries and involvement of foreign parties, possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance, allegations that the Union or State Governments are party to the rights’ deprivations of the citizens,” the order stated.
It further added the Centre’s counter to the petitions in which it disputed the jurisdiction of the court required further factual examination.
The bench extensively dealt with issues concerning privacy.
“Members of democratic society have reasonable concern of privacy. Citizens need to be protected from violation of privacy,” the bench spoke through its order.
It said the society today lives in an era of information and it was important that while we recognise technology, the privacy of individuals — not only journalists, but the privacy of all citizens — is equally important.
Restrictions on right to privacy are permitted, however, those restrictions have to stand constitutional scrutiny, the court said.
“In today’s world restriction on privacy is to prevent terrorism activity and can only be imposed when needed to protect national security,” the court added.
Surveillance, it stated, and how it is exercised, affects the right and freedom of people. Such technology may have a chilling effect on right to press, the court said.
(Edited by Neha Mahajan)