‘State cannot get free pass by raising national security concerns’: SC forms committee to probe Pegasus

Observing that there was “no clear stand” by the union of India pertaining to the Pegasus snoopgate case, and that there is “serious concern” of foreign agency involvement by surveilling Indian citizens, the Supreme Court today appointed a three-member expert committee to probe the case.

Announcing its verdict, a bench comprising Chief Justice of India NV Ramana and Justices Hima Kohli and Surya Kant stated that the court has chosen “renowned experts” with expertise in cybersecurity and forensics to be a part of this committee.

“Such committees have been formed to probe the falsity and discover the truth,” the court said. “The right to privacy violation needs to be examined.”

The court was hearing a batch of petitions filed in the context of reports on snooping using the Pegasus spyware. The petitions seek a judicial or SIT probe into the snooping issue.

The petitioners include the Editors Guild of India, advocate ML Sharma, CPIM parliamentarian John Brittas, professor and activist Jagdeep Chokkar, and journalists N Ram, Sashi Kumar, Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh, and Ipsa Shatakshi. The last five are also named as “potential targets” of the spyware.

The court announced today that the committee will be headed by former Supreme Court judge RV Raveendran, who will be assisted by former IPS officer Alok Joshi and Dr Sundeep Oberoi, chairman of the sub-committee in the International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee.

The other experts in the technical committee will include Dr Naveen Kumar Chaudhary, professor (cybersecurity and digital forensics) and dean of the National Forensic Sciences University in Gandhinagar; Dr Prabaharan P, professor at the School of Engineering at Amrita Vishwa Vidyapeetham in Kerala’s Amritapuri; and Dr Ashwin Anil Gumaste, institute chair associate professor (computer science and engineering) at the Indian Institute of Technology, Bombay.

The court said the committee will expeditiously probe this matter and its function will be overseen by the Supreme Court. The court also added that it was “an uphill task” to choose independent members.

The centre had earlier proposed forming an “expert committee” on its own to investigate the Pegasus issue. This was declined by the court, which said such a course of action would “violate the settled judicial principle against bias”.

Noting that there has been no specific denial by the centre regarding the snooping, the court remarked that it had “no option” but to accept the submissions of the petitioners “prima facie'' and to appoint an expert committee.

On September 13, even after the central government was given more time by the Supreme Court to file a detailed response on petitions pertaining to the Pegasus scandal, the centre outright refused to do so, citing “national security”.

Appearing for the centre, solicitor general Tushar Mehta had told the apex court that such issues “cannot be debated” in an affidavit or be a subject of debate in court or public discourse due to “its own pitfalls”.

Noting this, the bench today said that the court had given the centre ample time to to disclose all information regarding the Pegasus snooping. However, the court said, only a limited affidavit was filed which shed no light on the matter.

“If the centre made it stand clear, the burden on us would have been less,” the bench said. “The state cannot get a free pass every time by raising national security concerns. Centre should have justified its stand here and not render the court a mute spectator.”

Mehta had also claimed that many reports on the snooping were “motivated”. The court rebuked him, saying such omnibus oral submissions “cannot be accepted”.

‘Incumbent upon the centre to seriously consider the use of such a technology’

CJI Ramana began his judgment quoting George Orwell, "If you want to keep a secret, you must also hide it from yourself.”

He added that justice should not only be done but seen to be done.

Upholding the ideals of privacy, the court said that it is pertinently important to “safeguard the right to privacy”, not only the privacy of the journalists and others, but “the privacy of all citizens is important”.

“There are restrictions on the right to privacy but those restrictions have to stand constitutional scrutiny,” the court observed. “In today's world, restriction on privacy is to prevent terrorism activity and can only be imposed when needed to protect national security.”

It added that being “under surveillance” is also about freedom of press and the important role played by the press, since such technology may have a “chilling effect” on the rights of journalists.

Considering that the petitions are in the context of a “modern technology”, the Chief Justice said, “Our effort is to uphold the constitutional principle without being consumed into political rhetoric. It is incumbent upon the centre to seriously consider the use of such a technology.”

Acknowledging that the court was initially “not satisfied” with the writ petitions based on newspaper reports and that it usually “discourages” PILs based on newspaper reports, the Supreme Court stated that some of the petitioners are direct victims of the spyware, and that the writ petitions “raise concern”.

The court slated the matter to be heard in eight weeks.