SC Judgment on Pegasus spyware case – Explained, pointwise

Introduction

The Supreme Court (SC) has appointed an independent expert technical committee to examine allegations that the government used an Israeli spyware, Pegasus, to snoop on its own citizens. Committee will be overseen by a former apex court judge, Justice R.V. Raveendran.

Noting that the snooping allegations are grave and truth should be out, the Bench led by Chief Justice of India N.V. Ramana asked the committee to submit its report expeditiously. The next hearing will be after eight weeks.

The court has also asked the Raveendran committee to make recommendations on a legal and policy framework to protect citizens against surveillance and enhance the cyber security of the country.

The order came on the basis of petitions filed from several quarters, including veteran journalists, the Editors Guild and individuals who were the victims of the alleged snooping.

What is the rationale behind this move by SC?

SC order has cited several reasons which compelled the court to form a committee. These include

– Reports that the snooping exercise had widely impacted the rights to privacy and freedom of speech of ordinary citizens.

– No clear stand was taken by the 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 parties to the rights’ deprivations of the citizens.

As per SC, surveillance, or even the knowledge that one could be spied upon, affects the way individuals exercise their rights. Therefore, it could not ignore allegations that Pegasus affected the individual rights of the citizenry as a whole.

It also expressed particular concern about the protection of journalistic freedom. The Court has approached the issue as one that raises an “Orwellian concern”, recognising that intrusive surveillance not only violates the right to privacy but also has a chilling effect on the freedom of the press.

What are SC’s views on considerations of national security?

As per SC, the government may decline to provide information when constitutional considerations exist, such as those pertaining to national security. The state can violate a person’s privacy if it is absolutely necessary to protect national security and interests.

But, this does not mean that the State gets a free pass every time.

The claim has to be backed by evidence to prove that the disclosure of the information sought by the court would affect national security concerns.

The court accepted that judicial review in national security matters was limited. However, it does not licence the Government to call for an “omnibus prohibition” against judicial review.

What are SC’s views on surveillance vis-a-vis privacy of an individual?

The court has stated that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy. Surveillance is not illegal. But, any limitation on a fundamental right must be proportional and based on evidence

Court has thus effectively recognized that an act of surveillance must be tested on four grounds:

– first, the action must be supported by legislation

– second, the state must show the Court that the restriction made is aimed at a legitimate governmental end

– third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective

– fourth, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.

What is the significance of the SC’s order?

The order of the court constituting the committee attains significance for the following reasons:

i). Court’s continuing insistence on transparency and disclosure by the Union government. When the batch of petitions came for active hearing before the Supreme Court of India in August, the Union government first sought time to study them, and thereafter refused to provide any meaningful response. Therefore, the court accurately assessed the need for disclosures by the Union government on Pegasus, beyond denials.

ii). Supreme Court’s firm approach towards the national security submissions by the Union government. Herein the court stated that it would not push the Govt to provide any information that would impact national security and mere invocation of national security by the State does not render the Court a mute spectator.

iii). Rejecting the suggestion by the Solicitor-General to constitute a government committee of experts. Here, the court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, there has been little movement on any official inquiry. It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus.

iv). The constitution of this committee also marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

What are the challenges before the expert committee?

i). One of the challenges that the panel will face immediately is establishing its legitimacy so that victims impacted by the Pegasus Spyware attack come to it. It’s important that the committee establish trust so that all victims are willing to come forward to it, are willing to provide the technical data, and perhaps even willing to hand over their devices to them for analysis.

ii). There are concerns about the independence of the committee too. It’s very important that the committee at the initial phase declares its clear independence from the government that it takes the issue seriously. The conduct and statements of the members both in public and during the investigation will matter a lot.

iii). The committee will need answers from serving officials in the police, security agencies and intelligence. They will encounter pushback and resistance in answering questions.

iv). Ultimately, the other problem, of course, is the government choosing not to cooperate in the investigation. It would be a political decision whether or not to participate in the investigation.

What is the way forward?

Swift investigation: Although the committee has been formed, its conduct in investigating the allegations must go further. The investigation must be swift, and its finding must be made public.

Need for more safeguards: The expert committee must also propose more vigorous safeguards to improve existing laws and procedures for surveillance. The Telegraph Act on phone wiretaps and Information Technology Act on interception of electronic devices suffer from the infirmity of civil bureaucracy signing off on each other’s requests.

– Judicial oversight would enable a measure of independent checks and balances.

The investigation won’t move forward without the cooperation of the parties involved. In such a scenario, the SC must not hesitate in using the special powers guaranteed under the Constitution to compel the government to cooperate with the investigation.

Conclusion

As malware turns ever more advanced, the kind of intervention SC did is just what India needs to build a system that offers meaningful protection of the right to privacy without compromising on national security.

The Court-supervised panel’s success in unravelling the truth may depend on how much information it can extract from the Government and its surveillance agencies.