Top court forms committee to probe in Pegasus spyware case
Coming down heavily on Narendra Modi Government, the Supreme Court on Wednesday appointed a three-member panel of cyber experts to probe the alleged use of Israeli spyware Pegasus for surveillance of politicians, journalists, Corporates and Judges, saying every citizen needs protection against privacy violation and mere invocation of “national security by State” does not render the court a “mute spectator”.
Stating that “justice must not only be done but also be seen to be done,” the apex court rejected the Centre’s plea to allow it to appoint an expert committee to investigate the allegations on the grounds that such a course of action would violate the settled judicial principle against bias. The top court urged its former judge Justice R V Raveendran to oversee the functioning of the three-member panel and sought a report expeditiously from the committee. The detailed 46 page Judgment is published below this article.
The bench had reserved an order on September 13, saying it only wanted to know whether or not the Centre used the Pegasus spyware through illegal methods to allegedly snoop on citizens.
The bench headed by Chief Justice of India N V Ramana, comprising Justices Surya Kant and Hima Kohli took note of the vehement submissions of the Centre on national security and rejected it saying, “…This does not mean that the State gets a free pass every time the specter of ‘national security’ is raised. “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 for against judicial review.”
Pronouncing the verdict, the CJI said the Centre “must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator”. Justice Raveendran will oversee the functioning of the panel of “cyber security, digital forensics, networks and hardware” and the three members are – Naveen Kumar Chaudhary, Prabaharan P, and Ashwin Anil Gumaste.
The apex court said that former IPS officers Alok Joshi and Sundeep Oberoi — Chairman, Sub Committee in (International Organisation of Standardisation/ International Electro-Technical Commission/ Joint Technical Committee) — will assist Justice Raveendran to oversee the task to the committee. The top court said 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 private entity.
In the 46 page Judgment, the Bench reiterated the need for freedom of the press in a democratic society. “Such a scenario might result in self-censorship. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information,” said the apex court highlighting freedom of the press. “We make it clear that our effort is to uphold Constitutional aspirations and rule of law, without allowing ourselves to be consumed in political rhetoric,” the bench said, adding that this Court has always been conscious of not entering political thicket. “Members of civilized democratic society have a reasonable expectation of privacy. Privacy is not a singular concern of journalists or social activists,” the bench said.
In a democratic country governed by rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following procedure established by law under Constitution, it said.
The bench had reserved an order on September 13, saying it only wanted to know whether or not the Centre used the Pegasus spyware through illegal methods to allegedly snoop on citizens. The apex court was hearing a batch of pleas filed by Editors Guild of India, veteran journalists N Ram, Shashi Kumar, Paranjoy Guha Thakurta, seeking an independent probe into the alleged Pegasus snooping matter.
Chaudhary, the first member of the technical panel, is a Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat. The second member of the technical committee is Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala, and has “two decades of experience in computer science and security areas”. The third member of the technical committee, Gumaste is Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.
Giving the details of the terms of reference, the verdict, penned by the CJI, said the panel would also enquire and investigate what steps/ actions have been taken by the Centre after reports were published in 2019 about the hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware, whether any Pegasus suite was acquired by the Union of India, or any state government, or any central or state agency for use against the citizens of India.
“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? If any domestic entity/ person has used the spyware on the citizens of this country, then is such a use authorized? 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,” the bench asked the panel to enquire and investigate.
The top court also directed the expert panel to make recommendations regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing the improved right to privacy, enhancing and improving the cyber security of the nation and its assets. The other recommendations which the expert panel has been asked to submit are to ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with the law, by State and/ or non State entities through such spyware, regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
“Regarding the setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyber-attacks, and to investigate instances of cyber attacks in the country. Regarding any ad hoc 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,” the verdict said.
The committee constituted is authorized to devise its own procedure to effectively implement and answer the Terms of Reference, hold such inquiry or investigation as it deems fit; and take statements of any person in connection with the inquiry and call for the records of any authority or individual, the top court said. Justice Raveendran would be at liberty to take the assistance of any serving or retired officer(s), legal expert(s), or technical expert(s) in the discharge of his functions, it said.
“We request the overseeing Judge to fix the honorarium of the members of the committee in consultation with them, which shall be paid by the Respondent Union of India immediately….The Union of India and all the State Governments, as well as agencies/ authorities under them, are directed to extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court,” the bench said. The committee is requested to prepare the report after a thorough inquiry and place it expeditiously before the court, it said.
The detailed 46 page Judgment is published below.
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