A three-judge Bench of CJI NV Ramana, Justice Surya Kant, and Justice Hima Kohli has constituted an independent expert committee in the Pegasus case to probe the truth or falsity of spyware allegations.
The Court rejected the contention of the Respondent-Union that it will constitute an Expert Committee to probe into the matter, holding that such an action would violate the settled judicial principle against bias, i.e. justice must not only be done but also be seen to be done.
The Supreme Court has constituted a Technical Committee consisting of three members, including those who are experts in cyber security, digital forensics, networks, and hardware. Their functioning would be overseen by Justice R.V. Raveendran former Judge, Supreme Court of India and would be assisted by –
1) Mr. Alok Joshi, former IPS officer (1976 batch) who has immense and diverse investigative experience and technical knowledge.
2) Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of Standardisation/ International ElectroTechnical Commission/Joint Technical Committee), a subcommittee which develops and facilitates standards within the field of software products and systems.
The three-member committee would comprise of –
A) Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat.
B) Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala.
C) Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.
The Court provided the following reasons for passing an order for the constitution of the committee –
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.
The Court held that due to these 'compelling circumstances' it was bound to pass such an order.
The Court has also prescribed the terms of reference of the Committee to be enquiry, investigation, and determination of the spyware allegations including what steps were initiated by the Government to curb such a menace and also to make recommendations for the protection of the fundamental rights of the citizens and national security.
The procedure of the Committee has also been specified by the Court for its smooth functioning and facilitation.
The Court also held that it was necessary on its part to take up the case as certain grave allegations of infringement of the rights of the citizens of the country were raised, which assume significance.
"Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein," opined the Bench.
The Court also made the following observations prior to the constitution of the Committee –
Infringement of Right to Privacy
The right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the State or by any external agency.
Freedom of Press
"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 publicwatchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information."
The Court also noted that initially, it was reluctant to admit the petitions on the ground of lack of material, however, various other petitions were filed in the Court including those individuals who were purportedly victims of the alleged Pegasus spyware attack. Hence, the petitions, as well as additional documents filed by others, could not be set aside.
Inaction by the Respondent-Union of India
The Court held that despite the repeated assurances and opportunities given, the Respondent-Union placed on record a 'limited affidavit' which did not provide any clarity as to the facts of the matter.
"Such a course of action taken by the RespondentUnion of India, especially in proceedings of the present nature which touches upon the fundamental rights of the citizens of the country, cannot be accepted."
State does not get a 'free pass' every time the spectre of "national security" is raised
"The mere invocation of national security by the State does not render the Court a mute spectator."
"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."
Vague Denial by the Respondent-State
The Court observed that the Petitioners placed on record material that prima facie merits consideration and that there was no specific denial of any of the facts by the Respondent-State.
"There has only been an omnibus and vague denial in the "limited affidavit" filed by the RespondentUnion of India, which cannot be sufficient."
In the light of these observations, the Supreme Court has requested the Committee to prepare the report after thorough inquiry and place it before the Court expeditiously. The matter will be listed after 8 weeks.