Explained: Supreme Court On Pegasus Issue And The Expert Committee For Inquiry

On Wednesday (27 October), the Supreme Court of India formed an expert technical committee overseen by former SC judge R V Raveendran to examine the Pegasus issue.

Pegasus is a highly-advanced spyware that can gain access to someone’s cellphone after user clicks a link sent by it, or even with a missed call. After installing itself stealthily, Pegasus begins to contact control servers which allow it to send commands to gather data from the infected device.

Pegasus, therefore, can allegedly steal passwords, contacts, text messages, calendar info, as well as voice and video calls made through WhatsApp and even track live location.

The Israeli cyber arms firm NSO Group which developed Pegasus says on its website, “NSO products are used exclusively by government intelligence and law enforcement agencies to fight crime and terror.”

In July this year, a report by French media nonprofit, Forbidden Stories, and Amnesty International alleged that the software had been used to conduct surveillance on about 300 Indians, including two serving Cabinet ministers, three Opposition leaders, a Constitutional authority, government officials, scientists, and about 40 journalists.

The Wire reported that an investigation of leaked data by itself and its media partners on the Pegasus Project showed that Prashant Kishor was hacked by the spyware and Mamata Banerjee's nephew was also selected as a potential snoop target.

The report led to the allegations that the centre used Israeli software Pegasus to spy on the citizens. At the time, in response, the Minister of Electronics and Information Technology Ashwini Vaishnaw told the Parliament the following:

One, the publishers of the report themselves state that they cannot say if the numbers in the published list were under surveillance; two, the company whose technology was allegedly used has denied these claims out rightly; and, three, the time tested processes in our country are well-established to ensure that unauthorised surveillance does not occur.

Supreme Court Gets Involved

Multiple petitions were filed in the apex court, calling for an investigation into allegations that the Pegasus spyware was used to target opposition leaders, journalists and others.

Petitioners include the former union minister Yashwant Sinha, CPM MP John Brittas, Supreme Court advocate ML Sharma, the Editors' Guild of India and individual journalists. They had asked the court to order the government to produce details of the alleged surveillance. The order noted that various petitions in the case had been filed by direct victims.

The union government had offered court that it would appoint an expert committee to investigate the allegations. However, a three-judge Bench led by Chief Justice of India N V Ramana rejected the offer on the grounds that it would violate the settled judicial principle against bias - ‘justice must not only be done, but also be seen to be done’.

Previously, in the Puttaswamy judgement in 2017, the court upheld the right to privacy as a fundamental right under Article 21 of the Indian Constitution.

The Bench comprising of the Chief Justice and the Justices Surya Kant and Hima Kohli, said in the order:

"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 union government had also told the court that national security concerns constrained it from divulging the information on whether or not it had deployed the software. The SC said that the power of the state to snoop in the name of national security into the “sacred private space” of individuals is not absolute.

The state cannot get a free pass every time national security is raised, said the Supreme Court adding that "in the task of upholding of fundamental rights, the state cannot be an adversary".

The court also pointed out that the surveillance would hamper free exercise of the right of speech and expression and have a "chilling effect" on journalists, intellectuals, activists, and even the ordinary citizens who would resort to self-censorship.

The SC also said that the allegations raised “Orwellian concerns” about an all-pervasive technology like Pegasus. It noted that there was the possibility of involvement of the government, or even a foreign power, behind the surveillance.

The court said India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously.

National Security Cannot Be A Free Pass For The State

Chief Justice NV Ramana began the judgment with a quote from George Orwell's 1984: "If you want to keep a secret, you must also hide it from yourself."

The court highlighted how the Union of India had not specifically denied the allegations. It said that the government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit”; and refused to take a clear stand in court, citing national security reasons. It said that the centre could not give any clarity on the issue despite being given "ample opportunity" to do so.

"This court gave ample time to the centre to disclose all information regarding the Pegasus attack since 2019. However only a limited affidavit was filed throwing no light. If the centre made its stand clear the burden on us would have been less," said the Chief Justice.

The court observed:

"In today's world, restrictions on privacy is to prevent terrorism activity and can only be imposed when needed to protect national security. But the state cannot get a free pass every time by raising national security concerns."

"National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called against judicial review. Centre should have justified its stand here and not rendered the court a mute spectator. The court will not encroach upon national security but that does not make the court a mute spectator."

The Expert Committee

The court said it was “extremely difficult” to shortlist the members. Many had “politely declined” while others cited personal reasons. It formed the committee to ensure “absolute transparency and efficiency”. The court said it consciously avoided “political thickets”.

The SC in its order set up an inquiry headed by Justice Raveendran (retired). He would be assisted by Alok Joshi, former IPS officer (1976 batch) and Sundeep Oberoi, Chairman, Sub-Committee, International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee

The other three members of the 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

- Ashwin Anil Gumaste, Institute Chair- Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.

The court asked the committee to submit its report “expeditiously”. It posted the next hearing after eight weeks. The court, however, declined a plea by the petitioners to have the Cabinet Secretary submit an affidavit in court on the Pegasus allegations.

The judges said it was an "uphill task" to choose independent members, and it was done based on data gathered "personally".