SC's Pegasus Order a Good Step, But We Need To Wait for Results: Experts

The SC ordered the setting up of an expert committee to examine the use of Pegasus spyware against Indian citizens.

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Hailing the Supreme Court's order on the Pegasus row as a good step, the Internet Freedom Foundation's Apar Gupta and Centre for Communication Governance's Gunjan Chawla on Wednesday, 27 October, pointed out that we still need to wait for the results.

"The order by itself is promising, but this promise will need to be fulfilled through the actual report and the subsequent action taken by the Supreme Court of India."
Apar Gupta
"I think the approach of the government has been very very cautious, and I don't see this caution waning any time soon. I think it is a very real possibility that the fact-finding exercise could be stonewalled if the relevant authorities don't cooperate with the procedure."
Gunjan Chawla

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.


How Significant Is the Order?

On being asked how significant the order is, Apar Gupta dubbed it "institutional acknowledgement of Pegasus claims".

Further, Gupta cited the court as disclosing that the Union government has been provided multiple opportunities to put forward answers pertaining to the whole Pegasus row, and stating that the 'limited affidavit' filed by the court is "vague and omnibus". Gupta, thereby, added:

"The court gets into the national security argument as well, which is cited by the government to prevent filing a much more detailed affidavit and getting into the factual instances raised by the parties, especially those who have been impacted... The court says that it will impact an individual's right not only to privacy but also journalists' with respect to their freedom of speech and expression, their ability to do news gathering, and will cause a chilling effect."

Pointing out that the court says "national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning," Gupta explains:

"The court essentially says if you are claiming national security and not providing details, you have to say which details you cannot provide and state reasons for it. And hence... the Court goes on further and states they are constituting this committee."

Meanwhile, dubbing the order "a step in the right direction", Gunjan Chawla observes that the Supreme Court has seen value in appointing a fact-finding committee.

Will the Committee Be Able To Ensure Action?

Observing that the committee has power to take statements and call for records from any authority or individual, Chawla says:

"However, given that one of the questions that the committee is looking into is whether or not the spyware was acquired by the government agencies, I think there are certain regulatory provisions that would restrain the ability of the committee and the Court to look at the kind of documents that may or may not exist in this context."

She further states that the General Financial Rules have explicit provisions that empower the government to not publish about certain procurements if they deem it fit in the interest of national security.

"Whether or not we like it, the legal framework was framed by our colonisers to keep certain information out of the public domain," adds Chawla, pointing out that "our evidentiary rules sort of enable that kind of tendency."
Gunjan Chawla

Apar Gupta, on his part, observes that we lack clarity on the steps that will come after the committee submits its report to the apex court.

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