29 Oct 2021 3:30 AM GMT
A 3-judge bench of the Supreme Court of India of Justices N.V.Ramana, Surya Kant and Hima Kohli ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activists, etc using the Pegasus software.The functioning of the committee will be overseen by retired Supreme Court judge Justice...
A 3-judge bench of the Supreme Court of India of Justices N.V.Ramana, Surya Kant and Hima Kohli ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activists, etc using the Pegasus software.The functioning of the committee will be overseen by retired Supreme Court judge Justice RV Raveendran and the Technical Committee will comprise three members. The Court has asked the committee to investigate the matter expeditiously.
In light of important observations made by the Court in its order regarding the necessity of freedom of press and the potential "chilling effect" of mass surveillance, LiveLaw spoke to N.Ram, one of the most respected senior journalists in the country and the former Chief Editor of 'The Hindu', which has heralded brilliant pieces of investigative journalism on issues like Bofors and Rafale.
At the onset, N.Ram, as one of the petitioners in the case, expressed his pleasure at the interim order. "I think the narration of the issues, statement of principle, and the comprehensive terms of reference all indicate that it's a significant order...they've gone deeply into these questions even though these are only interim orders. As a petitioner, I am very pleased and I welcome this," he says. That an independent committee headed by a retired judge of the Supreme Court be set up to investigate the allegations, feels like a "vindication" of the petitioners' demands, he adds.
Such chilling effect on the freedom of speech is an assault on the vital public¬ watchdog role of the press: Supreme Court
The Court in its order had observed that the issue of possible surveillance is concerning not only from the point of view of privacy of individuals but also from the perspective of the freedom of the press. The order notes- "Such a 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."
N.Ram notes that these observations of the court on the freedom of the press are very significant as freedom of speech has come under tremendous pressure and assault in different parts of the country from the Central government and some state governments. "Eloquent sentences of this order on freedom of the press, the need to protect it, and also some reflections on the 'chilling effect' particularly pleased me," he adds.
The court in its order also makes a vital observation regarding the need to protect journalistic sources and the potential chilling effect that such illegal effect may have. It notes-" protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest."
Speaking from personal experience, N. Ram opines that in practice there isn't much interference. "I don't know about the situation in different parts of the country, so far as our investigation is concerned in Bofors and later in Rafale, there's been no real pressure to reveal or disclose the sources other than perhaps attempts like Pegasus to steal this information illegally," he explains. However, he adds, "I feel the protection of journalistic sources whether it is protected under law adequately is still debatable. Legal experts like Gautam Bhatia have raised this issue. Nevertheless, in the law of the land, I think it is going to be very important because there is a lacuna in the law."
Art.19 (1) (a) of the Constitution does not contain any express guarantee on 'source protection' for journalists. Ram mentioned that legal scholar Gautam Bhatia in a piece on 'Free Speech and Source Protection for Journalists' had argued that the issue of source-protection laws for journalists has largely gone unaddressed in Indian constitutional and statutory law. In the piece written for Centre for Internet and Society, he had argued that whereas both the United States and Europe had recognized the importance of source protection, Indian jurisprudence on the issue is negligible despite the Law Commission having twice proposed some manner of a shield law for journalistic source protection. Bhatia had argued that in order to protect the role of press as a either a strong shield law, or a definitive Supreme Court ruling, is required to fill the current vacuum that exists.
As N Ram points out, the protection of journalistic sources becomes especially important in investigative journalism as journalists will be unable to play the role of a watchdog unless they can guarantee confidentiality to their sources. In expressing delight that the Supreme Court has called attention to the issue of journalistic sources, N Ram echoes the sentiment of others who hope that the going forward the Court uses this opportunity to address the legal vacuum that exists in the issue.
Another significant aspect of the Pegasus Order has been the Court's observation that while newspaper reports, in and of themselves, should not in the ordinary course be taken to be ready-made pleadings that may be filed in Court, it takes note of the fact that "the sheer volume of cross-referenced and cross-verified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised." The Court's observations came in response to the Solicitor General's argument that many of the newspaper reports are "motivated" and "self¬-serving" in nature and wouldn't be sufficient to merit invocation of the court's jurisdiction.
Win for investigative journalism: N Ram
In this light, N.Ram points out that there are several supreme court judgments that have said that you can't just dismiss them as newspaper accounts. "Of course, if it's purely newspaper accounts then it's arguable...but in this matter, there has been a lot of a lot of research done independently of newspaper reports", he adds. He points out the work done by independent organizations abroad on this issue- Citizen Lab by the University of Toronto and Amnesty International. "The Lab is probably the leading expert group on military-grade spyware such as Pegasus. Also, the software developed by Amnesty International to detect whether Pegasus has compromised phones has been verified by Citizen Lab" he points out. In his opinion, the government can't dismiss these newspaper reports and the Court has rightly balanced the value of media reports and the need to investigate independently.
In that sense, the court's order can be seen as a win for investigative journalism, he said.
On the issue of newspaper reports forming the basis of Supreme Court-monitored probes, Apar Gupta, Executive Director of the Internet Freedom Foundation, points out that this wouldn't be the first instance of the Apex Court ordering a probe into issues illegal surveillance on the basis of investigative reports. As he correctly points out the first major case on illegal surveillance before the Supreme Court arose out of a news magazine 'Mainstream' in 1991 published a report about unauthorized interception of over 300 phones by the government. The proceedings culminated with the Supreme Court its 1996 judgment in People's Union for Civil Liberties v Union of India, laying down unambiguous and stringent guidelines to curb unauthorized surveillance. After laying down a 9-point guideline, the Apex Court had said that authorization for interception of telephones could be issued only by the home secretaries of the Union and state governments. These guidelines were later codified into Telegraph Rules in 2007 which include a specific rule that orders on interceptions of communications be issued by the Secretary in the Ministry of Home Affairs. So, there are legal routes to surveillance under which the government, under certain circumstances, is permitted to conduct surveillance. The legal question which the Committee and the Court must determine is whether the use of Pegasus falls within the circumstances carved out under the Indian Telegraph Act 1885 and the IT Act, 2000. As Apar Gupta points out, the legal question which will fall for the court's consideration would be whether the installation of spyware in phones is permissible under the law since hacking is expressly prohibited under the IT Act.
There is an opportunity to independently investigate and enquire into the matter and bring out the truth: N Ram
While the Terms of Reference of the Committee are very broad in nature, giving the Committee the necessary leg-space to make findings and recommendations as it deems best, a common refrain that has been expressed is that much of the success of the Committee would depend on how much the government cooperates. "The worry is whether the government will cooperate with the committee," as Justice Dipak Gupta put it while discussing the implication of the Supreme Court's Pegasus order.
N.Ram, however, is slightly optimistic. He adds, "for argument's sake even if the government does not cooperate, which of course it must do, you can independently investigate this and enquire into the matter and bring out the truth. For example, the software developed by Amnesty International. The tool has been able to detect for example in Prashant Kishore's case..so there is this possibility of independent inquiry and investigation. But we do hope the government will cooperate and the court ensures that. Because it will flout the order of the court if there is any obstruction that is illegal."
He points out that there have been instances of companies undertaking independent investigations into the use of military-grade spyware Pegasus. He alludes to the reports that had surfaced in 2019 that Whatsapp users had been compromised by the Pegasus spyware. "It was widely reported in 2019 that by exploiting a vulnerability in its Whatsapp's system, Pegasus was able to target a large number of individuals…Whatsapp in collaboration with Citizen Lab sent messages to individuals it believed had been compromised. This has been on record, the Supreme Court has taken note of that in its order", he adds. All this, he feels, shows that there is scope for independent investigation and inquiry in case the government does not cooperate. He also points out that the court does have a certain judicial review in a nuanced way in this matter and the power to do whatever is needed to ensure that the government cooperates. "But we do hope the government will cooperate and the court ensures that" he adds.
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