SC pulls up government, orders probe into Pegasus snooping row

New Delhi: In a major jolt to the Narendra Modi government, the Supreme Court on Wednesday appointed an expert committee under the supervision of a former top court judge, Justice R.V. Raveendran, to probe the alleged snooping of the mobile phones of political leaders, top judges, media personalities and other eminent people by using the Pegasus spyware as it thrashed the Centre for flagging national security and the fight against terrorism to stonewall any public disclosure of information.
Recognising that the scope of judicial review was limited when it comes to matters pertaining to national security, the court said, however, that this does not mean the State gets a free pass every time the spectre of “national security” is raised and the courts become “mute spectators” in such instances.

The court set up the expert committee, noting that despite being given ample time to disclose all information, the government “took no clear stand” on the action taken by it on the issue. It is for this reason, the court said, it had declined the government’s plea to allow it to appoint an independent expert committee to probe the matter as “such a course of action would violate the settled judicial principle against bias, i.e. that ‘justice must not only be done, but also be seen to be done’.”

Asking the expert committee to expeditiously place the report before it after a thorough inquiry, Chief Justice N.V. Ramana, heading a bench that also included Justices Surya Kant and Hima Kohli, said: “There has been no specific denial of any of the facts averred by the petitioners by the … Union of India. There has only been an omnibus and vague denial in the ‘limited affidavit’ filed by the Union of India, which cannot be sufficient. In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made.”

Dwelling on the Centre’s harping on national security concerns and the fight against terror in refusing to share detailed information on the Pegasus snooping, Chief Justice Ramana said: “The … 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.”

Accepting that the government can decline to furnish information when constitutional considerations, including the security of the state, or when there is a specific immunity under a specific statute, the court said: “It is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in court on affidavit.”

Noting that certain limitations operate in the exercise of the right to privacy as is the case with other fundamental rights, the court said that there has to be a balancing of competing interests -- the concerns of national security and the right to privacy of citizens. “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,” the Supreme Court’s ruling said.

The expert panel set up by the court on Wednesday has been tasked to not only probe the snooping but go beyond it to prevent it in future by recommending enactment (of new laws) or amendments to existing laws and procedures on surveillance to secure an improved right to privacy, improve cyber security, prevent the invasion of citizens’ right to privacy, except in accordance with law, by State and non-state entities through such spyware.

It has been also asked to suggest a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices, setting up of an independent premier agency to probe cyber security vulnerability to probe instances of cyberattacks in the country and what interim steps be taken by the court to protect the citizen’s rights, pending the filling up of the lacunae by Parliament.

Two other members of the panel are Alok Joshi, a former head of the Research and Analysis Wing, India’s external intelligence agency, and an 1976 batch IPS officer of the Haryana cadre, and Dr Sundeep Oberoi, the chairman of the subcommittee of International Organisation of Standardisation as also International Electro-technical commission and Joint Technical Committee.

Leaving it up to the panel to opt for any further experts, the court named a three-member technical committee to assist the panel -- Dr Naveen Kumar Chaudhary, professor of cyber security and digital forensics and dean of the Gandhinagar-based National Forensic Sciences University, Dr Prabhakaran P, professor of Amrita Vishwa Vidyapeetham, Anritapuri, Kerala, and Dr Ashwin Anil Gumaste, associate professor in IIT Bombay. The order details their experience for these appointments.

The court has ordered the listing of the case after eight weeks.