Monday, 17 January, 2022
HomeOpinionPegasus committee must succeed, unlike other judge-led panels—black money to air pollution

Pegasus committee must succeed, unlike other judge-led panels—black money to air pollution

The task Justice Raveendran Committee has to discharge would make others shrink at the prospect. But most people are not Justice Raveendran.

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Two weeks ago, the Supreme Court found itself faced with one of the great dangers of modern era: snooping using spyware. It is fortunate that we now have the nine-judge decision from August 2017 — Justice K.S. Puttaswamy and others vs Union of India — that cemented privacy as a fundamental right, and thereby allowed the court to take a firm stand on its protection.

Recent years have not been inspiring at the Supreme Court, which has for the large part seemed to have given a wide berth to the Narendra Modi government. In cases pertaining to environment, health, migrant labour, citizenship, police powers, electoral bonds, PM Cares, CBI and federalism, there appeared to be a sluggish approach, reflecting little of the glorious rights of the citizens under the Constitution. In this background, the order of 27 October coming from the bench headed by the Chief Justice himself was a refreshing change.

For the first time in a while, the court was not willing to accept “a limited affidavit”, “an omnibus oral allegation” or “a free pass on national security” from the Union government, especially when faced with admitted cases of hacking and introduction of malware into several thousand devices held by Indian citizens, many of whom represented the four estates. It was ironical that the very national security argument offered by the State was used by the Supreme Court as a compelling circumstance to intervene.

As a consequence, the court directed the setting up of an independent Technical Committee supervised by retired Supreme Court judge. Justice R.V. Raveendran and assisted by former top-cop Alok Joshi and cyber-security expert Sundeep Oberoi.  The terms of reference for the committee are wide-ranging, primarily seeking to know whether the Pegasus software had been used on Indians, whether government agencies were in the know or had authorised it, and what action had been taken since the Union of India had been first informed about this in 2019. In addition, the committee has also been requested to make recommendations for a legal regime to protect privacy and enhance cyber-security and procedures that may be used by citizens, along with the possibility of any interim mechanism that the Supreme Court could lay down. Most pertinently, the court has not solicited the report in a sealed cover – a refreshing change from the Justice M.B. Shah SIT on black money, whose reports still languish in the court’s registry.

Also read: Protection of sources vital for freedom of press, says SC during Pegasus hearing

Too little time

The task that Justice Raveendran committee has to discharge in just eight weeks is quite a substantial one, and most people would shrink at the prospect. But most people are not Justice Raveendran. I have been fortunate to see him work at close quarters in the Cricket Reforms Committee set up by the Supreme Court, and it would be difficult to find someone as intelligent, independent, meticulous and industrious. As with the BCCI, one can only imagine that there would be many lobbies, both within the government and outside it, who would create obstacles in the functioning of the committee. It would be to its everlasting credit, if the committee on Pegasus successfully maneuvered its way through the morass to obtain the truth. In this, the court has given it direction by allowing statements to be taken and records called for from any entity, apart from full freedom to have retired officers, lawyers and technical experts assisting it.

It is perhaps on the latter set of tasks (concerning a future legal regime) that the Raveendran Committee might find itself hard pressed for time. With laws dating back to the 19th century, several State regulations, a Personal Data Protection Bill that seems to be in deep freeze and a previous report of Justice Srikrishna Committee are just some of the many aspects to be considered. It is a tad ambitious to have a quality dossier ready by the end of the year. It would be appropriate for a little more time to be granted so that the committee could have a series of interactions with various agencies, citizen groups and cyber experts, thereby ensuring that stakeholder views are considered.

Also read: Retired SC judge Raveendran, from failing law exam to Lodha panel on cricket & now Pegasus probe

The role of the government

Of more immediate importance is to understand the way forward for the court as far as the Pegasus issue is concerned. As the Supreme Court has noted the former IT minister Ravi Shankar Prasad’s admission that the software had been used on Indian citizens, it is primarily a question of whether this has been done either at the behest of, or with the knowledge, of those in government. The full force of the penal law will of course be visited on those who actually carried out the infiltration, but for those in government, heads will have to roll.

The government had in its “limited affidavit” before the Supreme Court relied almost completely on Vaishnaw’s statement in Parliament, which carried the following conclusion — “time tested processes in our country are well established to ensure that unauthorised surveillance does not occur”. Far from being a denial of the surveillance, this remark seems to suggest only that it could not be unauthorised because of our so-called “time tested processes”. I am curious as to what this alludes to, because just in the last five years, we have had several leaks from the Aadhaar database, millions of credit cards compromised due to the malware introduced into Hitachi Payment Services (ICICI, Yes Bank, Axis, etc), the personal data of 10 million customers hacked from the Indian Railways portal and the email and password details of 17 million users of Zomato stolen. In just three months from February to April 2021, while the country was reeling under the pandemic, the Internet Freedom Foundation informs us that the following five data breaches took place: 18 crore customer orders of Dominos, 25 lakh users of Upstox, 10 crore Mobikwik details, 60 lakh Facebook profiles and 45 lakh Air India flyers. If anything, the “time tested processes” have been abject failures.

But most notably, the government did not deny that such access had taken place, nor did it explain what steps had been taken to investigate this foreign intrusion that undermined India’s sovereignty.

In India, the only real avenue for an authorised access and monitoring of the information stored on a mobile phone is as per Section 69 of the Information Technology Act read with Rule 3 of the 2009 Rules, which allow it to be done by (a) an order issued by a competent authority, or (b) in “unavoidable circumstances”, by a named officer of government, not below the rank of Joint Secretary. In both these circumstances, it must only be in view of the restrictions posed by Article 19(2) of the Constitution — sovereignty, friendly relations with foreign States and incitement. Any absence of the above norms, or even a sweeping order, which does not specify the individual computer resource, would be illegal and bring in its wake the entire gamut of penalties and jail time prescribed by the Act.

The Supreme Court appears to have its work cut out – if the committee’s report were to confirm the apprehensions of the petitioners, then both penal and disciplinary action would have to be taken against those in government who had played party to it, or even suppressed the fact from the court. Proceedings for perjury and contempt would follow, and maybe even a special mechanism to quantify the compensation due to the victims that would come from the pockets of those concerned.

The last 20 years have seen many judge-led committees appointed by the Supreme Court with ambitious objectives — securing black money, prison reform, road safety and controlling air pollution. All with little success. One can only hope that with Pegasus, the Raveendran Committee will, like the Greek hero of yore, slay the Chimera.

Gopal Sankaranarayanan is Senior Advocate, Supreme Court of India. Views are personal.

(Edited by Anurag Chaubey)

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