Supreme Court appoints Expert Committee to probe Pegasus Spying
Taking a serious note of the Pegasus surveillance in the country, the Supreme Court has constituted a committee headed by a former judge of the Supreme Court, Justice R V Raveendran.
The Supreme Court clubbed 11 writ petitions regarding the use of Pegasus surveillance software by the Union Government to spy on journalists, politicians, Chief Justice of India and several other dignitaries.
Some of the petitioners alleged to be direct victims of the Pegasus attack, while others approached the Supreme Court as Public Interest Litigants. They raised the issue of the inaction on the part of Government of India, to seriously consider the allegations raised, relating to the “purported cyber-attack” on citizens of this country.
The petitioners pointed out that since the spyware is sold only to vetted Governments, either some foreign government or certain agencies of the of the Union Government are using the said software on citizens of the country without following the due procedure established under law.
The petitioners sought an independent investigation into the allegations of the use of the spyware against them and others in the country. They sought the independent investigation to ensure credibility of the process.
A Bench of Chief Justice of India N V Ramana and Justices Surya Kant and Hima Kohli heard the combined writ. Chief Justice Ramana started his judgement with a quote from George Orwell’s famous novel 1984. “If you want to keep a secret, you must also hide it from yourself,” he quotes.
“The present batch of Writ Petitions raise an Orwellian concern, about the alleged possibility of utilising modern technology to hear what you hear, see what you see and to know what you do. In this context, this Court is called upon to examine an allegation of the use of such a technology, its utility, need and alleged abuse,” the judgement says.
The judges clarified in their order that their effort is to uphold the constitutional aspirations and the rule of law, “without allowing ourselves to be consumed in political rhetoric. Pointing out that the Supreme Court has always been conscious of not entering the political thicket, “at the same time it has never cowered from protecting all from the abuses of Fundamental Rights”.
The judgement quotes eminent international legal luminaries.
It quotes William Pitt, the Earl of Chatham, from “Historical Sketches of Statesmen who Flourished in the Time of George III First Series, Volume 1 by Lord Brougham (1845) the judgment says, “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!—all his force dares not cross the threshold of the ruined tenement!”
It further quotes from the article, The Right to Privacy, written in 1890 by Samuel Warren Louis Brandeis, “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.”…numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the housetops.”
The Court took note of the technological developments and said, “We live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier. We must recognise that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual.
Quoting an earlier judgement of the Supreme Court on the issue of Right to Privacy and the State’s legitimate interest, which stated that there should be a fulfilment of a threefold requirement. The first being that there should be a law in existence to justify the encroachment of privacy. The second is that the such a law should fall within the zone of reasonableness mandated in Article 14 and the third requirement is that the means, which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law.
“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,” the judgment adds.
The Bench then formed an Expert Committee stating that the decision was based on:
Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.
The entire citizenry is affected by such allegations due to the potential chilling effect.
No clear stand taken by the Respondent Union of India regarding actions taken by it.
Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
Allegations that the Union or State Governments are party to the rights’ deprivations of the citizens.
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.
The functioning of the Expert Committee would be overseen by Justice R V Raveendran, former Judge of the Supreme Court.
The Expert Committee comprises:
Mr Alok Joshi, former IPS officer (1976 batch) who has immense and diverse investigative experience and technical knowledge. He has worked as the Joint Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and Chairman, National Technical Research Organisation.
Dr Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee), a subcommittee which develops and facilitates standards within the field of software products and systems. Dr Oberoi is also a part of the Advisory Board of Cyber Security Education and Research Centre at Indraprastha Institute of Information Technology, Delhi. He is globally recognised as a cyber security expert.
The Supreme Court also appointed a three-member Technical Committee comprising:
Dr Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat. Dr Chaudhary has over two decades of experience as an academician, cyber security enabler and cyber security expert. He specialises in cyber security policy, network vulnerability assessment and penetration testing.
Dr Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He has two decades of experience in computer science and security areas. His areas of interest are malware detection, critical infrastructural security, complex binary analysis, AI and machine learning. He has many publications in reputed journals.
Dr Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA
The terms of reference of the Committee are:
A. To 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, intercept information and/or for any other purposes not explicitly stated herein?
The details of the victims and/or persons affected by such a spyware attack.
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.
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?
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?
If any domestic entity/person has used the spyware on the citizens of this country, then is such a use authorised?
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:
Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.
Regarding enhancing and improving the cyber security of the nation and its assets.
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.
Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
Regarding the setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyber-attacks and to investigate instances of cyberattacks in the country.
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.
On any other ancillary matter that the Committee may deem fit and proper.
The Committee has been requested to submit its report expeditiously.