27 Oct 2021 5:27 AM GMT
The Supreme Court on Wednesday ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activist etc using the Pegasus spyware.The functioning of the committee will be overseen by retired Supreme Court judge Justice RV Raveendran. The overseeing Judge will be assisted in this task by: i. Mr....
The Supreme Court on Wednesday ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activist etc using the Pegasus spyware.
The functioning of the committee will be overseen by retired Supreme Court judge Justice RV Raveendran. The overseeing Judge will be assisted in this task by:
i. Mr. Alok Joshi, former IPS officer (1976 batch)
ii. Dr. Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee).
The three members Technical Committee shall comprise
The Court has asked the committee to investigate the matter expeditiously. The matter will be listed after 8 weeks.
The judgment pronounced by the Chief Justice of India NV Ramana said that the Court was constituted to pass this order due to the following "compelling circumstances":
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 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.
Due to these circumstances, the Court said that "it is compelled to determine the truth and get to the bottom of the issue".
The Union Government's prayer to allow it to constitute a committee was rejected by the Court observing " that 'justice must not only be done, but also be seen to be done'. Allowing the Centre to probe the allegations by itself will violate the judicial principles against bias.
Judgment started with Orwellian quote.
"If you want to keep a secret, you must also hide it from yourself", the judgment started with this quote from George Orwell's novel '1984'.
The Supreme Court observed at the beginning of the judgment that the petitions raise an "Orwellian Concern" of surveillance. The Court said that the some of the petitioners allege to be direct victims of the Pegasus snooping and they raise the issue of inaction on the part of the Union of India.
Indiscriminate spying of citizens can't be allowed in a democracy except in accordance with law.
Indiscriminate spying of citizens cannot be allowed except in accordance with law, the Court observed in the judgment. 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.
"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.
It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship. This 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".
Union of India did not provide clarity
The Court said that it had initial reservations about the petitions filed on the basis of newspaper reports. However, taking note of the seriousness of the issue, notice was issued to the Union of India.
This Court gave ample time to Centre to disclose all information regarding the pegasus attack 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 help. However, the respondent Union of India declined to offer information. There was only a vague and omnibus denial of allegations by the Union.
"We had made it clear to the learned Solicitor General on many occasions that we would not push the Respondent-Union of India to provide any information that may affect the national security concerns of the country. However, despite the repeated assurances and opportunities given, ultimately the Respondent-Union of India has placed on record what they call a "limited affidavit", which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand.
If the Respondent-Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different", the Court observed in the judgment.
Mere invocation of national security does not render the Court a mere spectator
While acknowledging that the Union of India can decline information when issues of national security are involved, the Court said that mere invocation of "national security" can't render the Court a mute spectator.
"However, this does not mean that the State gets a free pass every time the spectre of "national security" is raised.
National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review.
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"
Vague and omnibus denial by Union of India not sufficient.
The Court observed that the Petitioners have placed on record certain material that prima facie merits consideration by the Court.
"There has been no specific denial of any of the facts averred by the Petitioners by the Respondent-Union of India. There has only been an omnibus and vague denial in the "limited affidavit" filed by the Respondent-Union of India, which cannot be sufficient", the Court observed in the judgment.
"In such circumstances, we have no option but to accept the prima facie case made out by the Petitioners to examine the allegations made", the Court added.
Uphill task to select independent committee
The Court observed in the judgment that in this "world of conflicts" it was an extremely uphill task to "find and select experts who are free from prejudices, are independent and competent". The Court noted that some of the persons had politely declined to be part of the committee.
"Rather than relying upon any Government agencies or any private entity, we have constituted the Committee and shortlisted expert members based on biodatas and information collected independently. Some of the candidates politely declined this assignment, while others had some conflict of interest. With our best intentions and efforts, we have shortlisted and chosen the most renowned experts available to be a part of the Committee", the Court said.
Terms of reference of the Committee
The terms of reference of the Committee are as follows:
A. To enquire, investigate and determine:
i. 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, intercept information and/or for any other purposes not explicitly stated herein?
ii. The details of the victims and/or persons affected by such a spyware attack.
iii. What steps/actions have been taken by the RespondentUnion of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.
iv. Whether any Pegasus suite of spyware was acquired by the RespondentUnion of India, or any State Government, or any central or state agency for use against the citizens of India?
v. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?
vi. If any domestic entity/person has used the spyware on the citizens of this country, then is such a use authorised?
vii. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.
B. To make recommendations:
i. Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.
ii. Regarding enhancing and improving the cyber security of the nation and its assets.
iii. To ensure prevention of invasion of citizens' right to privacy, otherwise than in accordance with law, by State and/or nonState entities through such spywares.
iv. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
v. Regarding the setting up of a wellequipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.
vi. Regarding any adhoc arrangement that may be made by this Court as an interim measure for the protection of citizen's rights, pending filling up of lacunae by the Parliament.
vii. On any other ancillary matter that the Committee may deem fit and proper.
The Procedure of the Committee shall be as follows:
(1) The Committee constituted by this Order is authorised to
(a) devise its own procedure to effectively implement and answer the Terms of Reference;
(b) hold such enquiry or investigation as it deems fit;and
(c) take statements of any person in connection with the enquiry and call for the records of any authority or individual.
On September 23, the Chief Justice of India had said that the Court was thinking of setting up a technical committee to look into the allegations of snooping of journalists, activists, politicians etc., using the Pegasus spyware developed by the Israeli company NSO. The CJI had said that the order was getting delayed due to difficulties in identifying persons willing to be part of the technical committee.
It was on September 13 that a bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli reserved interim order in the Pegasus case, after the Central Government expressed unwillingness to file an affidavit stating whether it has used the Pegasus spyware or not.
Solicitor General Tushar Mehta told the bench that the matter was related to national security, and hence cannot be made a subject matter of a judicial debate or public discourse. He said that the Government cannot reveal on affidavit whether it has used any particular software for security purposes, as it will alert terror groups. However, taking note of the seriousness of the allegations, the Centre has agreed to constitute a technical committee to examine the issue, and the said committee will submit a report to the Court, the SG added.
The bench had observed that it did not want any details pertaining to national security or defence but was only seeking clarification regarding allegations of snooping of civilians
"We are not interested in knowing matters related to security or defence. We are only concerned to know whether Govt has used any method other than admissible under law", Justice Surya Kant had said.
"We are again reiterating we are not interested in knowing matters related to security or defence. We are only concerned, as my brother said, we have journalists, activists etc before us…to know whether Govt has used any method other than admissible under law," CJI NV Ramana had said.
The petitioners - represented by Senior Advocates Kapil Sibal, Shyam Divan, Meenaskhi Arora, Rakesh Dwivedi, Dinesh Dwivedi, CU Singh - submitted that a committee constituted by the Centre cannot be expected to function in a fair and unbiased manner. According to the petitioners, NSO, the Israeli firm which developed Pegasus, sells its services only to governments, and when the Government of India was under a cloud of suspicion, it cannot be expected to conduct a fair probe.
The Supreme Court had on 17th August issued notice before admission to the Central Government in the batch of petitions.
The Central Government had told the Supreme Court that it does not want to file any additional affidavit in the Pegasus issue, as national security aspects are involved. The Centre had added that it is willing to place the details before the expert committee proposed to be constituted by it to examine the issues.
Several petitions were thereafter filed before the Top Court seeking an independent probe into the matter, notice whereupon is yet to be issued. However, the Top Court has expressed concern over the alleged incident, saying that no doubt, the allegations are serious, if the reports are true. "Truth has to come out, that's a different story. We don't know whose names are there", CJI NV Ramana said.
The petitions have been filed by several people including Advocate ML Sharma, journalists N Ram and Sashi Kumar, CPI(M) Rajya Sabha MP John Brittas, five pegasus targets( Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shataksi), social activist Jagdeep Chhokkar, Narendra Kumar Mishra and the Editors Guild of India.
Case Title : Manohar Lal Sharma versus Union of India and connected cases
Citation : LL 2021 SC 600
Click here to read/download the judgment