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SC Extends Time for Pegasus Panel to File Report, Case to be Heard in July

Senior advocate Kapil Sibal asked the bench to make the Committee's interim report public, but Centre opposed this.

Published
Law
5 min read
SC Extends Time for Pegasus Panel to File Report, Case to be Heard in July
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The Supreme Court on Friday, 20 May granted the panel set up by it to examine the use of the Pegasus spyware against Indian citizens some more time to file its report, and will hear the matter next in July.

On 27 October 2021, the apex court had appointed a Technical Committee comprised of cyber-security experts to look into the claims made by journalists, activists and others who were subjected to surveillance using the spyware.

The Committee's work is being overseen by former apex court judge Justice RV Raveendran, who is also looking into legal aspects of surveillance in India and the use of such spyware, as well as possible amendments to existing surveillance and cyber security laws.

The Committee submitted an interim report to the apex court, and in a hearing on 20 May, sought till the end of May to complete its analysis.

According to Chief Justice of India NV Ramana (who is heading the bench considering this matter), the Committee informed Justice Raveendran that it has tested 29 mobile devices suspected of infection by Pegasus, and recorded statements of relevant persons, including journalists.
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The Committee has also stated in its report that it has issued notices to government agencies and other relevant persons.

After a brief hearing where the bench of CJI Ramana and Justices Surya Kant and Hima Kohli heard from senior advocate Kapil Sibal (on behalf of the petitioners) and Solicitor General Tushar Mehta, the court directed the Technical Committee to "expedite examination of the mobile phones" received by them, preferably within the next four weeks.

The matter will be listed in July after the Supreme Court's vacations, which begin on Monday, are concluded.

During the hearing, Sibal requested the judges to make the interim report of the Technical Committee public, while the Solicitor General on behalf of the Centre objected to this. The court has not yet indicated whether it will make the report public, but said the final report would be comprehensive.

Who are the Members of the Committee?

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

What is the Case About?

The apex court ordered the formation of the Technical Committee on 27 October 2021, 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 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.

What is the Committee Supposed to be Doing?

The terms of reference for the Technical Committee say that it is to "enquire, investigate and determine":

  1. 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?

  2. The details of the victims and/or persons affected by such a spyware attack.

  3. What steps/actions have been taken by the Centre after reports were published in 2019 about hacking of WhatsApp accounts of Indian citizens, using Pegasus spyware.

  4. Whether any Pegasus suite of spyware was acquired by the Centre, or any state Government, or any central or state agency for use against the citizens of India?

  5. 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 a deployment made?

  6. If any domestic entity/person has used the spyware on the citizens of this country, then is such an use authorised?

  7. 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.

To be able to do this, the committee has been authorised to devise its own procedure and take statements of "any person in connection with the enquiry and call for the records of any authority or individual."

Justice Raveendran is being assisted by former Indian Police Service (IPS) and Research and Analysis Wing (RAW) officer Alok Joshi as well as Dr Sundeep Oberoi, and has also been authorised to take the assistance of any retired officers or experts needed for the probe.

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Recommendations To Be Provided to Supreme Court

The panel has been instructed to provide recommendations to the Supreme Court, following its enquiry, on a number of questions, including ways to improve both privacy and cyber security protections.

Interestingly, the court even asked for recommendations on setting up a mechanism for citizens to raise grievances about illegal surveillance, including an interim mechanism by the court till Parliament enacts a law for the same.

The full set of recommendations asked for are:

  1. Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.

  2. Regarding enhancing and improving cybersecurity of the nation and its assets.

  3. To ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or non-­State entities through such spywares.

  4. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.

  5. Regarding the setting up of a well­-equipped independent premier agency to investigate cybersecurity vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.

  6. Regarding any ad-­hoc arrangement that may be made by the Supreme Court as an interim measure for the protection of citizens' rights, pending filling up of lacunae by the Parliament.

  7. On any other ancillary matter that the committee may deem fit and proper.

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