SC will set up expert panel on Pegasus row

The CJI’s statement suggests that the court has virtually rejected the Union government’s plea to let it set up an “independent committee” to look into the controversy.
Reiteration of its stand by the government also prompted the court to remark that the Centre was “beating around the bush”.
Reiteration of its stand by the government also prompted the court to remark that the Centre was “beating around the bush”.
Updated on Sep 24, 2021 12:24 AM IST
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By Utkarsh Anand, New Delhi

The Supreme Court will set up an expert committee by itself to inquire into the alleged use of Israeli spyware Pegasus for surveillance on Indian citizens, Chief Justice of India (CJI) NV Ramana said on Thursday.

The CJI’s statement suggests that the court has virtually rejected the Union government’s plea to let it set up an “independent committee” to look into the controversy.

Justice Ramana, who heads the bench which has been hearing a clutch of petitions demanding a court-monitored investigation into the unlawful snooping, added that the order will be passed next week.

“We were expected to pass the order this week but it got delayed because some of the members of the technical expert team we contacted expressed personal difficulties in being part of the committee. That is why it is taking time. But we will be able to finalise the members of the committee soon. You please inform the other lawyers too that we will pass the order next week,” justice Ramana told senior advocate CU Singh, who represents one of the petitioners, during the hearing of an unconnected matter.

Singh replied in the affirmative. But CJI Ramana did not elaborate on the terms of references of the proposed committee and the areas that it will look into. The detailed order, which is now expected next week, will specify those aspects.

Leader of the opposition in the Rajya Sabha and senior Congress leader Mallikarjun Kharge welcomed the court’s decision. “On behalf of all progressive parties, I welcome the Supreme Court’s decision to set up a committee to investigate the Pegasus snooping scam. Given its grave national security and privacy implication, every Indian hopes for an efficient and transparent probe,” Kharge said in a tweet.

The court, on September 13, reserved its order in the case after the Union government said that it could not make public whether its agencies used the Israeli spyware as such disclosure will 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.

Solicitor general Tushar Mehta, representing the Centre, said at the time that the government was open to having a committee of independent domain experts who could go into all aspects of the controversy and submit its report before the bench while adding that the use of a particular software “cannot be made a part of the public discourse in the larger national interest and in the interest of the security of the nation”.

The SG requested the bench to allow the government to set up an expert committee. But most of the 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 consisting of members of its choice to go into the issue and report back.

While reserving its order in the matter on September 13, the bench, which included justices Surya Kant and Hima Kohli, said the court will pass an interim order shortly on the constitution of an expert committee and on other ancillary issues related to an independent inquiry after considering the materials placed by the petitioners before it and the submissions made by the counsel for the parties.

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

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 had 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”.

On August 17, the court observed that it is “not averse” to set 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 had 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 its 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. The SG said the government stands by its August 16 affidavit, which neither confirmed nor denied the use of the military-grade spyware to hack phones of ministers, politicians, businessmen, activists, and journalists, and which offered to set up an expert committee instead.

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 it 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.

“Ultimately it is your prerogative and you have decided not to file anything. We will now pass an interim order what we have to pass,” the bench had said while reserving its order.

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Monday, October 18, 2021