Supreme Court appoints expert  panel to probe Pegasus row

The three-member expert panel, supervised by retired Supreme Court judge R.V. Raveendran, will also ascertain details of people targeted by the military-grade Israeli spyware. The court said it was concerned by the “potential chilling effect” on the right to privacy and freedom of speech.

The bench, headed by Chief Justice of India N.V. Ramana, asserted that “in a democratic country governed by 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 bench, which included justices Surya Kant and Hima Kohli, said the court is “compelled to take up the cause to determine the truth and get to the bottom of the allegations” because of the gravity of the accusations of infringement of the rights of citizens of the country through wide-scale unlawful surveillance.

It junked the Centre’s request to desist from interfering in matters of national security, asserting 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”.

The bench said Justice Raveendran would be assisted by former IPS officer Alok Joshi and cyber security expert Sundeep Oberoi in overseeing the functioning of the technical committee. It set the matter for hearing after eight weeks.

The committee shall ascertain whether the Centre or any state government acquired Pegasus and used it on the phones or other devices of citizens 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 authorized and the details of the victims of spyware attack.

The bench said the panel would further propose a mechanism to ensure prevention of invasion of citizens’ right to privacy; a forum to raise grievances on suspicion of illegal surveillance of their devices; and the feasibility of setting up of a well-equipped independent premier agency to investigate cybersecurity vulnerabilities and cyberattacks.

The bench said the panel may also propose an 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.

The 46-page order of the top court 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, while the Centre and states shall render all assistance to Justice Raveendran and other members of the supervisory and expert committees.

“We make it clear that our effort is to uphold the constitutional aspirations and the 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 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 that 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,” said the bench.

The Pegasus row erupted on 18 July after a global consortium of media outlets and investigative journalists reported that the phones of Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 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 and 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 16 August that refused to confirm or deny whether it had used the 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 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.

The bench reserved its order in the case on 13 September after the Union government said it could not make public whether its agencies used the spyware as such disclosure would be against national interest. With this statement, the government returned to a position it articulated on 17 August before suggesting on 7 September that it could reconsider its stand.

In its order on Wednesday, the top court began by pointing out that the petitions on the use of Pegasus raise an Orwellian concern about the alleged possibility of utilizing 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 panel 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.

“Instead, we are inclined to pass an order appointing an expert committee whose functioning will be overseen by a retired judge of the Supreme Court,” said the bench, adding a similar exercise has been resorted to by the top court in various other circumstances to probe the truth or falsity of certain allegations, taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.

It has also pulled up the Centre for deciding against filing a detailed affidavit to clarify a slew of pertinent points raised by petitioners.