‘Can’t give free pass’: SC panel to probe Pegasus

The top court held that the Union government cannot get “a free pass every time” by raising the spectre of “national security” when the issues concern the “potential chilling effect” on right to privacy and freedom of speech.
The court denied the Union government’s request to desist from interfering in the matter over concerns of national security, (HT FILE)
The court denied the Union government’s request to desist from interfering in the matter over concerns of national security, (HT FILE)
Updated on Oct 28, 2021 07:25 AM IST
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ByUtkarsh Anand, New Delhi

The Supreme Court on Wednesday set up a three-member expert committee, to be supervised by a retired judge of the court, RV Raveendran, to investigate whether the Centre or any state government acquired and used Israeli spyware Pegasus for surveillance of Indian citizens, and to also ascertain details of people targeted.

The top court held that the Union government cannot get “a free pass every time” by raising the spectre of “national security” when the issues concern the “potential chilling effect” on right to privacy and freedom of speech. It referred to the lack of a “specific denial” by the government and also its reluctance to file a “detailed affidavit”.

Engaging the services of some well-known experts in the field of computer science, cybersecurity and digital forensics, a bench, headed by Chief Justice of India (CJI) NV Ramana asserted that “in a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution”.

The committee shall ascertain whether the Centre or any state government acquired Pegasus and used it on the phones or other devices of the citizens of the country to access stored data and other information. If the spyware was indeed used, the court said, the committee shall determine how and by whom such interceptions were authorised, and the details of the victims of spyware attack.

The bench, which included justices Surya Kant and Hima Kohli, underlined that the court is “compelled to take up the cause to determine the truth and get to the bottom of the allegations” in view of the gravity of accusations of infringement of the rights of the citizens of the country through wide-scale unlawful surveillance.

Spokespersons for the Union ministries of home, law and information technology did not respond to queries.

The court denied the Union government’s request to desist from interfering in the matter over concerns of national security, underscoring that “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and that “mere invocation of national security by the State does not render the court a mute spectator”.

The court appointed National Forensic Sciences University’s dean Naveen Kumar Chaudhary, Amrita Vishwa Vidyapeetham’s professor Prabaharan P and IIT-Bombay professor Ashwin Anil Gumaste as members of the technical committee for “expeditiously” preparing and submitting a report before the bench after a “thorough inquiry”.

Fixing the matter for hearing after eight weeks, the bench said that justice Raveendran will be assisted by former IPS officer Alok Joshi and cyber security expert Sundeep Oberoi in overseeing the functioning of the technical committee.

When contacted, Justice Raveendran said: “I am yet to receive the order from the court. On receiving the copy of the order from the court, it will be my endeavour to oversee the functioning of the technical committee in the manner directed by the Supreme Court.”

Seeking recommendations on amending existing laws and improving the cybersecurity of the nation, the bench said that the committee would further propose a mechanism to ensure prevention of invasion of citizens’ right to privacy; suggest a forum to raise grievances on suspicion of illegal surveillance of their devices; and evaluate the feasibility of setting up of a well -­equipped independent premier agency to investigate cybersecurity vulnerabilities and cyberattacks.

The bench said that the panel may also propose an ad­ hoc arrangement that may be made by the court as an interim measure for the protection of citizen’s rights, pending Parliament passing a law to this effect.

The 46-page order of the top court further made it clear that the committee shall have the power to take the statements of any person in connection with the inquiry and call for the records of any authority or individual.

This is significant because it means the committee can seek and will receive whatever information it needs from law enforcement agencies, and ministries.

“We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights,” said the court in its order.

It added: “Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom... It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights.”

The Pegasus row erupted on July 18 after an international consortium of media outlets and investigative journalists reported that the phones of Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 that were potentially targeted by Pegasus, Israeli company NSO Group’s phone hacking software.

According to this consortium, Pegasus can switch on a target’s phone camera and microphone, as well as access data on the device, effectively turning the phone into a pocket spy.

Responding to a bunch of petitions filed by lawyers, politicians, journalists and civil rights activists, the Union ministry of electronics and information technology filed a three-page affidavit on August 16 that refused to confirm or deny whether it used Pegasus spyware for surveillance of Indians. The Centre instead offered to set up an expert committee to look into the controversy and “dispel any wrong narrative spread by certain vested interests”.

But most lawyers for the petitioners, including senior counsel Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Colin Gonsalves and Meenakshi Arora, urged the court to reject the government’s proposal, contending that the “wrongdoer” could not be allowed to have the liberty of choosing the forum of inquiry. The lawyers submitted that the court should set up a panel.

The bench reserved its order in the case on September 13 after the Union government said that it could not make public whether its agencies used the Israeli spyware as such disclosure would be against national interest.

With this statement, the government returned to a position it articulated on August 17, before suggesting on September 7 that it could reconsider its stand.

In its order on Wednesday, the top court began by pointing out that the petitions on use of Pegasus raise an Orwellian concern, about the alleged possibility of utilising modern technology to hear what you hear, see what you see and to know what you do.”

It dismissed the Centre’s plea to let it set up a committee of experts, maintaining that such a course of action would violate the settled judicial principle against bias that justice must not only be done, but also be seen to be done.

The apex court also pulled up the Union government for deciding against filing a detailed affidavit to clarify a slew of pertinent points raised by a bunch of petitioners even as some of them complained that their phones were hacked using Pegasus.

“There has been no specific denial of any of the facts averred by the petitioners by the Union of India. There has only been an omnibus and vague denial in the ‘limited affidavit’ filed by them (on August 16), which cannot be sufficient. In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made,” held the bench.

It further shot down solicitor general Tushar Mehta’s argument that some of the reports relied upon by the petitioners were motivated and self-serving. “Such an omnibus oral allegation is not sufficient to desist from interference,” said the bench.

The bench underlined that the situation would have been different had Centre opted to make its stand clear instead of filing a limited affidavit on August 16 that “did not shed any light on their stand or provide any clarity as to the facts of the matter”.

The court added that unlawful surveillance is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy.

During the previous hearings, the court on August 17 observed that it is “not averse” to setting up an expert committee but that it expects the government to bring sufficient facts on record regarding the interception regime in India.

The government, however, replied that any disclosure on its using or not using Pegasus spyware would come at the cost of national security and insisted that it will divulge such information only before the proposed committee, which, it said, can report to the top court.

It also added that all interceptions were being done as per the statutory procedure, and it would not wish to put out in the public domain details of the software used for lawful surveillance by filing any additional affidavit.

Following the Centre’s refusal, the court on August 17 issued a formal notice to the government on the batch of pleas filed by petitioners in the case, a list that includes advocate ML Sharma; former minister Yashwant Sinha; Rajya Sabha MP John Brittas; the Editors Guild of India; journalists N Ram and Sashi Kumar; journalists Paranjoy Guha Thakurta, Rupesh Kumar Singh, Ipshita Shatakshi, SNM Abdi, and Prem Shankar Jha; and civil rights activists Jagdeep S Chhokar and Narendra Mishra.

Deferring the matter for September 7, the bench once again asked the SG to consider filing a detailed reply while observing that the court would ponder over the future course of action.

On September 7, the SG asked for some time to reconsider the government’s earlier stand, following which the matter was fixed for hearing on September 13.

However, on September 13, the Centre went back to its previous stance.

Raising the issue of national security, Mehta added that a facade is sought to be created that the government is hiding the truth whereas its stand is clear that it is not evading any inquiry but is rather willing to have it done on its own through a committee of independent experts.

But the bench remained unimpressed with the SG’s submissions on the national security aspect, pointing out that the court has already clarified several times that it is not interested in details of national security or defence but needs some pertinent information on the surveillance module to ascertain what kind of orders should be passed.

The reiteration of its stand by the government also prompted the court to remark that the Centre was “beating around the bush”.

“By instituting an inquiry by an independent body, the apex court has sent a clear message - let the truth come out. The verdict is a landmark one and takes the law on privacy forward,” senior advocate Vivek Sood, whose recently published book ‘Right to Privacy: Arguing for the People’ also discussed the Pegasus row.

 

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Sunday, November 28, 2021