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'State Can't Get Free Pass by Saying National Security': SC Orders Pegasus Probe

Court appoints technical committee overseen by retired SC judge to examine violations of right to privacy.

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The Supreme Court on Wednesday, 27 October ordered the setting up of an expert committee overseen by a retired Supreme Court judge to examine the use of Pegasus spyware against Indian citizens, including whether the right to privacy has been violated.

"There has been no specific denial of any of the facts averred by the Petitioners by the Respondent-Union of India... In such circumstances, we have no option but to accept the prima facie case made out by the Petitioners to examine the allegations made."
Supreme Court Order

The three-member Technical Committee set up by the court will be overseen by former Supreme Court judge Justice RV Raveendran, along former IPS officer Alok Joshi and Dr Sundeep Oberoi. The committee has been directed to conduct an "expeditious probe" into the matter, with the case set to be heard again after 8 weeks.

The members of the Technical Committee are:

  1. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat.

  2. Dr. Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala.

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

The bench of Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli had been hearing the various petitions filed requesting probes into the use of the Pegasus spyware on Indian citizens.

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The CJI noted that several victims of Pegasus had approached the court, and it was incumbent to consider the use of such technology against them.

Central to the court's order is the need to "safeguard the right to privacy." While the court acknowledged that there can be restrictions on this fundamental right for national security, as information may need to be collected by intelligence agencies to fight terrorism, for instance.

However, the violation of privacy that this will entail can only be allowed "when it is absolutely necessary for protecting national security/interest and is proportional."

"The considerations for usage of such alleged technology, ought to be evidence based. In a democratic country governed by the 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."
Supreme Court Order

The court also expressed concerns about the chilling effect on free speech that the use of this kind of technology could have on regular citizens and the press in particular.

"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. 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."
Supreme Court Order

The bench noted that while it was initially displeased with some of the petitions filed before it, which had only been based on news reports, there were also petitions filed before it by "direct victims" of Pegasus hacking.

The bench criticised the response of the central government, represented by Solicitor General Tushar Mehta, which had termed reports about the use of Pegasus as motivated, and refused to clarify whether or not it had purchased and used the spyware.

However, despite the court giving the Centre ample opportunity to respond and provide it with information taken since 2019 when the first Pegasus revelations had come to light, it had only submitted a limited affidavit, "which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand."

The court acknowledged that the Centre "may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State."

At the same time, it also held that this does not mean that the Centre can avoid a review of their actions by the court.

"However, this does not mean that the State gets 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. Although this Court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review."
Supreme Court Order

In a very significant part of the order, the Supreme Court has said that the Modi government will have to explain to the court why the divulging of certain facts would affect national security, and can't just use the excuse to render the court a "mute spectator".

"The Respondent-Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They 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."
Supreme Court Order

The Pegasus Controversy in Court

The apex court had reserved its order on 13 September, following several rounds of arguments where the petitioners who had approached the court – including those whose phones had been confirmed to be compromised by Pegasus – had stressed that the use of such spyware is illegal and cannot be considered lawful surveillance.

The Centre refused multiple requests by the judges to clarify whether or not it had purchased and used the NSO Group's spyware, saying that providing an answer either way on affidavit would not be in "national interest".

The Modi government had, however, suggested that it would set up a committee of technical experts who could examine the claims about the spyware being used (reported extensively by the Pegasus Project, including The Wire in India).

Israeli spyware Pegasus is believed to have been used to snoop on at least 300 Indian phone numbers. The names of Rahul Gandhi, Prashant Kishor, Ashok Lavasa, and Union ministers Prahlad Patel and Ashwini Vaishnaw, are among those on the leaked list of potential targets, The Wire had reported.

The list of cases that are being heard by the apex court include:

  1. Public Interest Litigations (PILs) filed by advocate ML Sharma, journalists N Ram and Sashi Kumar, Rajya Sabha MP John Brittas, and the Editors Guild of India;

  2. Writ petitions filed by people whose names feature on the list of potential Pegasus snooping targets, including journalists Paranjoy Guha Thakurta, SNM Abdi, and Rupesh Kumar Singh, as well as electoral reforms activist Jagdeep Chhokar.

The petitioners have been represented in the Supreme Court by a battery of star senior advocates, including Shyam Divan (for Chhokar), Kapil Sibal (for N Ram and Sashi Kumar), Rakesh Dwivedi (for SNM Abdi and Prem Shankar Jha), and Meenakshi Arora (for Rajya Sabha MP John Brittas).

During the course of their hearings, they criticised the use of such spyware, with Divan calling it an "assault on democracy".

Senior advocate Dinesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta, specifically noted the chilling effect on free speech that can result from this intrusive technology, and had asked the court to order a cease and desist of the use of Pegasus on Thakurta:

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"There is a serious chilling effect from the use of this kind of spyware, particularly for journalists. Since the government is not denying the use of the spyware against him, the court should order a cease and desist."

Solicitor General Tushar Mehta, representing the central government, had insisted there was no need for any further clarifications from the Centre after it had filed an affidavit on 16 August, which said the pleas before the court are based on "conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material (sic)".

Reacting to Mehta's remarks on 13 September, Sibal said that the Union Government has a duty to provide facts relating to violation of fundamental rights, adding that a refusal to provide confirmation about whether the government used Pegasus is "detrimental to justice" and was "unbelievable".

Faced with the Centre's intransigence, the bench had clarified that they did not want to demand any action which would affect national security, but there were citizens before it alleging that their phones had been compromised and this could not be ignored.

"We had given fair opportunity to Centre to make a statement. Now they don't want to file an affidavit. So, we will pass an order like that... what to do," the CJI had remarked on 13 September.

What Had the Petitioners Asked the Court to Do?

The key arguments across the petitions filed in the apex court are that the use of a spyware tool like Pegasus violates the targets' fundamental right to privacy, and cannot be justified as lawful surveillance – instead, it amounts to illegal hacking of the victims' devices.

The writ petitions filed by the alleged victims of Pegasus snooping (with forensic analysis confirmation for Guha Thakurta and Abdi) argue that the use of Pegasus against them was "state-sponsored illegal hacking".

The involvement of the government is presumed by them on the basis of the Centre's failure to deny purchasing and using the spyware, as well as manufacturer NSO Group's insistence that they only sell their technology to governments and state agencies.

In addition to the core arguments on privacy and surveillance, the Writ Petitions and the PILs filed by journalists also specifically argue the impact that this usage of surveillance has on freedom of the press.

The pleas almost uniformly sought some sort of judicially monitored probe into the allegations that Pegasus was used against Indian citizens, whether by an SIT or an inquiry by a sitting/retired judge of the apex court.

Another consistent demand across the PILs and writ petitions is for the Centre to disclose conclusively whether it has acquired and used Pegasus and other similar spyware against Indian citizens.

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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