Manas Dasgupta
NEW DELHI, Oct 27: In a major setback to the centre, the Supreme Court on Wednesday threw out its request for appointing an expert committee to probe into the allegations of unlawfully using the Israeli spyware Pegasus to snoop on some private citizens and ordered an independent inquiry into the issue under the supervision of a retired judge of the apex court.
The Chief Justice of India NV Ramana, who headed thethree-judge bench said the court was not convinced by the centre’s arguments of specter of national security and said the state could not get a free pass every time raising the issue of national security. “The power of the state to snoop in the name of national security into the sacred private space of individuals could not be absolute,” it ruled.
The court appointed a three-member expert technical committee to probe into the allegations and their work would be overseen by the retired apex court judge Justice R.V. Raveendran who would be assisted by two experts in his work of supervision. The technical committee would examine expeditiously the allegations that the Centre used Israeli software Pegasus to spy on citizens and submit its report to the Supreme Court before the next hearing of the case two months later.
The three-judge Bench led by CJI Ramana explained that it decided to refuse the Centre’s offer to appoint an expert committee to investigate the allegations because “such a course of action would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’”.
Justice Raveendran would be assisted 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 three members of the technical committee are Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.
The court said the committee would “enquire, investigate and determine” (i) whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein; (ii) The details of the victims and/or persons affected by such a spyware attack; (iii) What steps/actions have been taken by the Respondent-Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware; (iv) Whether any Pegasus suite of spyware was acquired by the Respondent Union of India, or any State Government, or any central or state agency for use against the citizens of India; (v) If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made; (vi) If any domestic entity/person has used the spyware on the citizens of this country, then is such a use authorised; (vii) Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.
It would also make recommendations (i) Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy; (ii) Regarding enhancing and improving the cyber security of the nation and its assets; (iii) To ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or nonState entities through such spywares; (iv) Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices; (v) Regarding the setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country; (vi) Regarding any adhoc arrangement that may be made by this Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament; (vii) On any other ancillary matter that the Committee may deem fit and proper.
On the selection of members for the committee, the bench, also comprising Justices Surya Kant and Hima Kohli, said it was “extremely difficult” to shortlist the members. Many had “politely declined” while others cited personal reasons. “It would be appropriate to state that in this world of conflicts, it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent. Rather than relying upon any Government agencies or any, we have constituted the Committee and shortlisted expert members based on biodatas and information collected independently. Some of the candidates politely declined this assignment, while others had some conflict of interest. With our best intentions and efforts, we have shortlisted and chosen the most renowned experts available to be a part of the Committee.” The Bench said it had formed the committee with the best intentions to ensure “absolute transparency and efficiency.” The court said it consciously avoided “political thickets” but could not cower when allegations involved a “grave” threat to the privacy and free speech of the entire citizenry and raised the possibility of involvement of the Government, or even a foreign power, behind the surveillance.
The ruling came on a batch of 12 petitions which sought an independent probe into the allegations which surfaced in the media about the unauthorised surveillance. The court said the petitions filed before it, including ones by veteran journalists N. Ram and Sashi Kumar, Editors Guild of India, the former union minister Yashwant Sinha and other noted citizens as well as the victims of alleged snooping, had raised “Orwellian concerns” about an all-pervasive technology like Pegasus.
The court said India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously. It said the gnawing fear of being spied on affected liberty and had a “chilling effect.” Ordinary citizens, and not just activists and journalists, started to drift towards self-censorship.
“Members of a civilised 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 Bench said in the order.
The court highlighted how the Union of India had not specifically denied the allegations. The government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit.” The Government had refused to take a clear stand in court, citing national security reasons, despite the fact that the Pegasus allegations had first surfaced two years ago.
“The mere invocation of national security by the state does not render the court a mute spectator,” Chief Justice Ramana clarified for the Bench. The state did not get “a free pass every time the spectre of national security is raised… National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.” The court, however, declined a plea by the petitioners to have the Cabinet Secretary submit an affidavit in court, responding to Pegasus allegations.
The court said the right to privacy, although declared to be inalienable, cannot be said to be an absolute, as the Constitution does not provide for such a right without reasonable restrictions. Certain limitations exist when it comes to the right to privacy as well, it said, adding however, any restrictions imposed must necessarily pass constitutional scrutiny.
The Centre had declined to file any further affidavit in the matter saying it involved matters of national security, but took the stand that it was willing to disclose all information before a committee of technical experts and urged the court to let it appoint the committee.
Declining the government’s request to constitute the committee, the court said, “Of course, the…Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State. However, this does not mean that the State gets a free pass every time the spectre of ‘national security’ is raised.
The court referred to William Pitt, the Earl of Chatham, on the power of the right to privacy of the citizen over the state. “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail — its roof may shake— the wind may blow through it— the storm may enter, the rain may enter— but the King of England cannot enter!— all his force dares not cross the threshold of the ruined tenement!” the Supreme Court quoted.
The NSO group, which owns Pegasus, admits this is spyware and is used to hack phones, but says it does business only with governments and government agencies. The Israeli company says it does not corroborate the list of potential targets reported by media companies around the world. The Indian government has said there is “no substance” to the reports of Pegasus being used by it against opposition leaders, journalists and others.