With 'No Specific Denial' From Govt, SC Forms Committee to Probe Pegasus Project Revelations

'There was only a vague and omnibus denial of allegations by the Union,' the court said, coming down heavily on the Union government's refusal to file a detailed affidavit, citing 'national security' concerns.

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New Delhi: The Supreme Court on Thursday, October 27, set up an independent expert committee to investigate the use of Pegasus spyware against journalists, opposition politicians and others, overruling pleas by the government that national security concerns required a veil be placed on the question of surveillance.

Wednesday’s ruling follows revelations made this July by The Wire and its global media partners in the Pegasus Project reports about how the smart phones of over a dozen people were found infected or targeted by spyware. These individuals were part of a larger group of persons whose numbers figured in a leaked database of probable Pegasus targets around the world.

The court noted that in the absence of specific denial by the Union government, it had no option but to set up such an independent panel to probe the charges which had been levelled.

The committee will be overseen by a retired Supreme Court judge, Justice R.V. Raveendran. He will be assisted by 1976-batch former IPS officer Alok Joshi and chairman of the sub-committee in the International Organisation of Standardisation/ International Electro-Technical Commission’s Joint Technical Committee, Sundeep Oberoi. Additionally, Justice Raveendran can take the assistance of any serving or retired officers, legal experts or technical experts in the discharge of his functions.

Alok Joshi was, till December 2014, the chief of RAW, one of the Indian agencies believed to be using Pegasus – though the spyware appears to have been acquired only in 2017, after his retirement. The Modi government appointed Joshi as head of the National Technical Research Organisation in 2015, a post he remained in till November 2018.

LiveLaw has reported on the court’s observations and noted that the three members of the technical committee which will advise the investigation will comprise:

  • Dr Naveen Kumar Chaudhary, professor of cyber security and digital forensics and dean of the National Forensic Sciences University, at Gandhinagar, Gujarat;
  • Dr Prabaharan P, professor at the School of Engineering at Amrita Vishwa Vidyapeetham in Kerala; and
  • Dr Ashwin Anil Gumaste, Institute Chair Associate Professor of computer science and engineering at the Indian Institute of Technology, Bombay.

The apex court bench of Chief Justice of India N.V. Ramana and Justices Surya Kant and Hima Kohli has ordered the committee to submit its report after eight weeks. The court has given detailed orders on what it expects the committee to follow up and look into.

As part of the Pegasus Project, The Wire, along with other international publications had reported extensively on a leaked database of phone numbers which could have been potentially snooped upon with the use of a spyware sold by Israel’s NSO Group. The group claimed it only has ‘vetted government’ clients.

In India, The Wire has revealed that those potentially and successfully spied upon include opposition politicians, activists, industrialists, lawyers and journalists.

A section of these journalists, lawyers, activists and politicians – including five targets confirmed by the Amnesty Lab, on whom the Pegasus software was used – moved Supreme Court with nine petitions in total, asking for a judicial probe into the matter.

The petitioners in this case include advocate M.L. Sharma, Rajya Sabha MP John Brittas, director of the Hindu Group of publications N. Ram and founder of Asianet Sashi Kumar, the Editors Guild of India, and journalists Rupesh Kumar Singh, Ipsa Shatakshi, Paranjoy Guha Thakurta, S.N.M. Abidi and Prem Shankar Jha.

“There has been no specific denial by Centre (about use of Pegasus). Thus we have no option but to accept the submissions of petitioner prima facie and thus we appoint an expert committee whose function will be overseen by the supreme court,” the apex court said, according to Bar and Bench.

The court also expressed its initial misgivings over accepting writ petitions based entirely upon news reports, stressing that it was not disposed to distrust news organisation but was burdened with determining facts in such cases.

“That said, after we indicated our reservations to the Petitioners regarding the lack of material, various other petitions have been filed in Court, including by individuals who were purportedly victims of the alleged Pegasus spyware attack. These subsequently filed petitions…have brought on record certain materials that cannot be brushed aside…,” the court said.

‘National security’

Observations made by the court were significant and ascribed blame on the Union government for not willing to respond appropriately to the Supreme Court’s notice.

The Union government has notably dithered on filing a detailed affidavit on the matter, citing national security concerns.

“Of course, the learned Solicitor General suggested that many of these reports [on the Pegasus Project] are motivated and self­serving. However, such an omnibus oral allegation is not sufficient to desist from interference,” the court noted.

The court also observed that it gave “ample time to the Centre” to disclose information on the Pegasus attacks since 2019.

“However only a limited affidavit was filed throwing no light. If the respondent Union of India had made their stand clear, it would have been of help. However, the respondent Union of India declined to offer information. There was only a vague and omnibus denial of allegations by the Union,” the court said on Wednesday.

Noting that the state cannot get free pass by raising national security concerns, the court observed that exception citing such concerns have to be proved, pleaded and defended in court.

“However, it is incumbent on the State to not only specifically plead such constitutional concern [on national security] or statutory immunity but they must also prove and justify the same in Court on affidavit. The Respondent 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,” it said.

Despite calls from the opposition and civil society quarters, the Union government has not addressed the claims beyond IT minister Ashwini Vaishnaw’s statement in parliament, on any form of illegal surveillance not being possible. The Wire has highlighted how Vaishnaw had misled the Lok Sabha by saying that there was “no factual basis” to claim an earlier Pegasus attack, when the same government had acknowledged previous instances of intrusion.

In the course of the current hearings, senior advocate Kapil Sibal, lead counsel for the petitioners had submitted that in 2019, when certain reports of Pegasus hacking WhatsApp came to light, the then law minister had acknowledged the reports of hacking in parliament, but the Union government did not indicate if and what actions were taken subsequently, “which information they could have disclosed on affidavit.”

‘Orwellian concern’

The Supreme Court noted at the beginning of the day that the petitions raise an ‘Orwellian concern’ of surveillance.

“If you want to keep a secret, you must also hide it from yourself,” the bench quoted from George Orwell’s 1984.

The court observed that indiscriminate spying cannot be allowed except in accordance with law. “Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists,” the court said.

Highlighting the “potential chilling effect” that spying can have on freedom of speech and the freedom of the press, the Supreme Court also said it was compelled to “determine the truth and get to the bottom of the issue.”

“This is also an important concern for the freedom of the press, which is a vital pillar of the democracy. Potential chilling effect on the freedom of speech will affect democracy,” the court noted.

As reported by The Wire, more than 40 journalists are on the list of potentially snooped upon phone numbers.

The Supreme Court also quoted from William Pitt, the Earl of Chatham, to highlight how the government cannot interfere into the affairs of the people it governs:

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter!

‘Compelling circumstances’

The court itself highlighted the “compelling circumstances” that led it to pass an order asking for a committee to look into the revelations, by numbering them as follows:

i. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.

ii. The entire citizenry is affected by such allegations due to the potential chilling effect.

iii. No clear stand taken by the Respondent­ Union of India regarding actions taken by it.

iv. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.

v. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.

vi. Allegations that the Union or State Governments are party 37 to the rights’ deprivations of the citizens.

vii. Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and requires further factual examination.