Stating that the state doesn’t have absolute power to snoop into the ‘sacred private space’ of individuals, and it can’t get a free pass every time in the name of ‘national security’, the Supreme Court on Wednesday appointed a three-member technical committee overseen by its former judge Justice RV Raveendran to conduct a thorough enquiry into allegations that the Centre used Israeli software Pegasus to spy on a group of its citizens, including prominent journalists, activists and politicians.
The panel would also make recommendations regarding new surveillance laws/procedures or changes in the extant ones and the legal options to buttress the right to privacy, the court said in a 46-page judgment.
The top court’s move came as a jolt to the Union government, which, as per the court, hasn’t “taken a clear stand on the actions taken by it” in the wake of the allegations, despite repeated persuasive remarks by the court.
Defining the grounds for its reasoning and judgment, the court also cited that the allegations of unauthorised surveillance affected the ‘entire citizenry’ due to its ‘potential chilling effect’.
As per the order of a three-judge bench headed by Chief Justice NV Ramana, the technical committee will inter alia ‘enquire, investigate and determine’ 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 or intercept information, who all have been affected by such a spyware attack, what steps/actions have been taken by the Union of India in this regard and 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.
The court expressed concern over the possibility of some foreign authority or agency or private entity involved in placing citizens of India under surveillance and also over the doubts that the Union/state governments are party to the rights’ deprivations of the citizens. Even the question of usage of the technology on citizens was disputed and therefore required further factual examination, it noted. The court said even as it would not enter ‘political thickets’, it could not cower when the allegations involved a serious threat to the privacy and free speech of citizens.
The apex court rejected the Centre’s proposal to form its expert panel, saying it would violate the settled judicial principle against bias, ie, that ‘justice must not only be done, but also be seen to be done’. The court said it had no option but to accept prima facie allegations made by the petitioners, including journalists N Ram and Sashi Kumar, for probe, as the Centre made an ‘omnibus and vague’ denial in its limited and short affidavit in the case.
While the Centre had refused to divulge details on whether Pegasus was used or not, citing national security concerns, the judges said that the court would not encroach upon national security but said “that does not make the court a mute spectator.” “National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning,” the bench, also comprising justices Surya Kant and Hima Kohli, said.
Asking the committee to submit its report ‘expeditiously,’ the SC said India could not remain mute in the face of the allegations when some foreign countries have seriously taken the purported spyware attack, and some have initiated proceedings internally to determine the truth. “Every invasion of privacy must pass the test of reasonableness and constitutional necessity,” the top court said.
It said 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,” the judges observed.
The three-member expert committee includes Naveen Kumar Chaudhary, professor (cyber security and digital forensics) National Forensic Sciences University, Gandhinagar, Prabaharan P, professor (school of engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala and Ashwin Anil Gumaste, associate professor (computer science and engineering, IIT Bombay. Its functioning, will be overseen by Justice Raveendran, who will be assisted by Alok Joshi, former IPS officer and Sundeep Oberoi, chairman, sub-committee in International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee.
The directions came on a batch of 11 petitions, including one filed by the Editors Guild of India, seeking an independent probe into the alleged snooping. Apart from Ram, the petitioners included politicians such as Rajya Sabha Member John Brittas, social activist Jagdeep Chhokar, apart from journalists Paranjoy Guha Thakurta and Rupesh Kumar Singh.
Welcoming the SC’s decision, Congress leader Rahul Gandhi termed it as a “big step…I am confident that we will get the truth out of this”. Rajya Sabha MP Subramanian Swamy advised the central government to “cut your losses”. Trinamool Congress member and Lok Sabha MP Mahua Moitra stated that the independent probe was the “first step towards justice in the Pegasus issue”.