SC forms committee to probe Pegasus issue, says Centre's 'vague denial' not enough

New Delhi: The Supreme Court on Wednesday set up a three-member expert committee, to be supervised by a former judge of the top court, to inquire into the alleged use of Israeli spyware Pegasus for surveillance of Indian citizens, as it noted that the issues raised directly concern “the potential chilling effect” on right to privacy and freedom of speech.

A bench, headed by Chief Justice of India (CJI) NV Ramana, said that retired SC judge RV Raveendran will supervise the functioning of the technical committee, which will look into the “truth or falsity of the allegations” and will submit a report “expeditiously”.

“We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights,” stated the bench, which also included justices Surya Kant and Hima Kohli.

The members of the technical committee named by the court are: Dr Naveen Kumar Chaudhary, professor (Cyber Security and Digital Forensics) and dean, National Forensic Sciences University, Gandhinagar, Gujarat; Dr Prabaharan P, professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala and Dr Ashwin Anil Gumaste, institute chair associate professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.

Former judge Raveendran, in supervising the work of the technical committee, will be assisted by former Indian Police Service (IPS) officer Alok Joshi and Dr Sundeep Oberoi, chairman, sub committee in (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee).

Posting the clutch of cases for after eight weeks, the bench said that the technical committee will go into the issues relating to the right to privacy, procedure followed for interception and involvement of foreign agencies in surveilling Indian citizens.

The CJI, while reading out the operative part of the order, asserted that the 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,” read the order.

It also highlighted that “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.”

The court added that unlawful surveillance 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,” maintained the bench.

The bench further rejected the Central government’s plea to let it set up a committee to look into the controversy, noting that it will violate the settled judicial principle against bias -- ‘justice must not only be done, but also be seen to be done’.

In its order, the apex court has also pulled up the Union government for raising the issue of national security instead of filing a detailed affidavit to clarify various pertinent points raised by the petitioners, some of whom had complained that their phones were hacked using Israeli spyware Pegasus.

The court said that national security cannot be used as a “bugbear” by the Centre and that the court will not give the Union government “a free pass every time the spectre of national security is raised.”

“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,” said the court.

It underlined that it would have been a different situation had the Centre opted to make its stand clear instead of filing a limited affidavit on August 16 that did not shed any light on their stand or provide any clarity as to the facts of the matter at hand.

The bench held that the petitioners have placed on record certain material that prima facie merits consideration by the Supreme Court and the “omnibus and vague denial” by the Centre is not sufficient when there is no specific denial of any of the facts placed in the pleas. “In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made,” it concluded.

The court, on September 13, reserved its order in the case after the Union government said that it could not make public whether its agencies used the Israeli spyware as such disclosure would be against national interest. With this statement, the government returned to a position it articulated on August 17, before suggesting on September 7 that it could reconsider its stand.

The reiteration of its stand by the government also prompted the court to remark that the Centre was “beating around the bush”.

Solicitor general Tushar Mehta, representing the Centre, however said at the time that the government was open to having a committee of independent domain experts to go into all aspects of the controversy and submit its report before the bench while adding that the use of a particular software “cannot be made a part of the public discourse in the larger national interest and in the interest of the security of the nation”.

The SG requested the bench to allow the government to set up an expert committee. But most of the lawyers for the petitioners, including senior counsel Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Colin Gonsalves and Meenakshi Arora, urged the court to reject the government’s proposal, contending that the “wrongdoer” could not be allowed to have the liberty of choosing the forum of inquiry. The lawyers submitted that the court should set up a panel consisting of members of its choice to go into the issue and report back.

The Pegasus row erupted on July 18 after an international consortium of media outlets and investigative journalists reported that the phones of Indian ministers, politicians, activists, businessmen and journalists were among the 50,000 that were potentially targeted by Pegasus, Israeli company NSO Group’s phone hacking software. According to this consortium, Pegasus can switch on a target’s phone camera and microphone, as well as access data on the device, effectively turning the phone into a pocket spy.

Responding to a bunch of petitions filed by lawyers, politicians, journalists and civil rights activists, the Union ministry of electronics and information technology filed a three-page affidavit on August 16 that refused to confirm or deny whether it had used Pegasus spyware for surveillance of Indians. The Centre instead offered to set up an expert committee to look into the controversy and “dispel any wrong narrative spread by certain vested interests”.