Supreme Court appoints committee to investigate Pegasus in India; “State does not get a free pass”

Citing national security concerns “does not mean that the state gets a free pass every time the spectra of national security is raised. National security is not a bugbear that the judiciary shies away from, by virtue of its mere mention. Although this court should be circumspect in encroaching the area of national security, no omnibus prohibition can be called against judicial review”, the Supreme Court said today, while constituting an expert committee led by Justice RV Ravindran, to investigate the usage of Pegasus by the Government of India against its own citizens. The interim order was passed by a bench comprising Chief Justice NV Ramana and Justices Surya Kant and Hima Kohli. The court rejected Shyam Divan’s pleading (Prof Jagdeep Chhokar’s petition) asking the government to file an affidavit, while deciding to constitute the committee.

“The mere invocation of national security by the state does not render the court a mute spectator.”

The court pointed out that in response to the facts placed by the petitioners, there has been no specific denial by the Union of India. There has only been an omnibus denial, which it said cannot be sufficient. “The respondent Union of India must necessarily plead and prove the facts and the information sought must be kept secret as their divulgence would affect national security concerns”, it added. The matter is to be listed after 8 weeks.

The Expert Committee

The court said that it was an uphill task to find experts who are both independent and competent. Some candidates declined the assignment, while others indicated a conflict of interest. They’ve shortlisted expert members. They’ve left it to the expert judge to seek additional assistance if necessary. The committee includes:

• Justice RV Ravindran, who will oversee its functioning:
• Alok Joshi, former IPS officer
• Dr. Sundeep Oberoi, Chairman, Sub Committee of International Organisation of Standardisation of International Electro-Technical Commission

It also has three technical members:

• • Dr. Naveen Kumar Choudhary, National Forensic Science Univerisity
  • Dr. Prabhakaran from Amrita Vishwa Vidyapeetham in Kerala
  • Dr. Ashwini Anil Gupte

Union of India criticised

The court was critical of the Union of India’s lack of clarification, saying: “This court gave ample opportunity to the Union of India to clarify its stance regarding the allegations raised and to provide information to assist the court, regarding the various actions taken by it over the last two years, since the first disclosure of the Pegasus spyware attack. We had made it clear to the learned Solicitor General on many occasions that we will not push the Union of India  to provide any information that may affect the national security concerns of the country.” The Court said that despite repeated opportunities, the Union of India placed on record a limited affidavit which does not place on record their stand or provide any clarity regarding facts of the matter at hand.

Instead, the order is being passed appointing an expert committee, because of the following compelling circumstances:

1. The right to privacy and freedom of speech are alleged to be impacted, which needs to be examined
2. The entire citizenry is affected due to the potential chilling effect
3. No clear stand taken by the Union of India regarding the allegations
4. Seriousness accorded to the allegations by foreign countries and the involvement of foreign parties.
5. Possibility that some foreign agencies or agencies are involved in placing the citizens of this country under surveillance
6. Allegations that the union or state governments are party to the rights deprivation of the citizens

The Indian government has consistently avoided confirming that it licensed Pegasus and expressed unwillingness to file an affidavit in the matter, citing national security. They also questioned the integrity of the reports, alleging that they’re motivated. In a hearing on September 13, the government had offered to set up a committee of technical experts who could examine the claims about the spyware being used on more than 300 Indians, many of them being journalists, politicians, academicians, bureaucrats, security officials, and businessmen, according to an investigation by The Wire. The apex court did not accept the Centre’s suggestion and reserved the order.

Previous Hearings

September 13, 2021: SG Tushar Mehta argued that as per their filing there has been no unauthorised surveillance, and said that the Union of India would constitute a committee of domain experts not connected with the government. He said that the petitioners (particularly, Sibal) had insisted that the Central government should make a statement on whether a software is being used by the government, but that such issues “can’t be debated or placed on affidavit”, and can’t be a matter of public debate. This has its own pitfalls, Mehta said, including that terror groups don’t know which software is being used to track their activities. Mehta said that the committee can place the facts before the Court, but it cannot be made public. Kapil Sibal pointed towards the judgment of the court in 2011, “Ram Jethmalani vs Union of India”, saying that “Both parties bear the responsibility of placing all information before this court. The burden of protection of fundamental rights is primarily the duty of the state.” “The state has the duty to reveal all the facts and information to the court and provide it to the petitioners. The petitioners will then be enabled to bring to light fact that lead to the rendering of a decision.” “They are using spyware against the citizens of this country. Have they tried to find out? Have they filed an FIR? They have CERT-in. Tt deals with these issues. That was set out in Rule 8. This is unbelievable that a govt of India says that I will not tell the court”. Sibal pointed towards the setting up of a committee in the Hawala case. “We have to ensure that none of this can happen in future. Our position is that this is illegal surveilane. You should not allow the govt to set up committee. The CJI has followed this case in the Anuradha Bhasin case. You’ve made the same observation.”

Shyam Divan asked for the facts and circumstances to be provided via a detailed affidavit filed by the cabinet secretary, saying that he has highlighted the cases in which the Court has ordered that the cabinet secretary provide information. The reasons: “As the topmost bureaucrat, it is the cabinet secretary has responsibility which extends to all these.” He pointed towards affidavits by Sandeep Shukla from IIT Kanpur, who said he has conducted laboratory experiements on Pegasus. He is part of a global effort to identify. He sets out what has happened here.” Divan pointed towards the issue of “Zero click vulnerability, which does not require any action from the victim. Our analysis it is not clear whether it was used on Indian victims. Apart from the victim not knowing, it is clear that the person has access to the device. This is not wiretapping.” CJI acknowledged that Pegasus is introduced silently in devices. Divan highlighted that Pegasus is also an implantation mechanism.

Dinesh Dwivedi sought an order of  cease and desist: if the government doesn’t deny the usage of Pegasus, then “Why should they be allowed to continue? Colin Gonsalves pointed out that apart from Pegasus, malware such as finfisher has also been used in India, and that unauthorised surveillance takes place in many states in India. There are 5000 interception orders given by the Home Secretary every month, indicating that there is “abundant evidence on record to show that central and state governments are using…that there is widespread usage of malware. We cannot rely on the principal wrongdoer to suggest a committee to the court which should be formed.”

Tushar Mehta said that there is a statutory regime in place, and “All technologies have side effects they can be used and abused. We are saying that all these technical issues be gone into by domain experts to find out whether the petitioners are right or wrong. It is the assurance by me that the domain experts would have no relationship with the government.”

The court said that it will pass an order.

August 25, 2021 [read]: The Supreme Court decided to club the petition challenging the constitution of a judicial panel by the West Bengal government on July 27, 2021, to conduct an investigation into the Pegasus controversy.  The action was taken after a report by  The Wire said that the mobile phone of election strategist Prashant Kishor, who led the Trinamool Congress’ campaign in the 2021 state elections, was hacked using Pegasus. The report also said that West Bengal Chief Minister Mamata Banerjee’s nephew Abhishek Banerjee’s phone number was “selected as a potential snoop target” The two-member Commission of Inquiry included retired SC judge Madan Lokur and retired chief justice of Kolkata High Court Jyotirmoy Bhattacharya. The commission had been constituted “in exercise of the power conferred under the Sec 3 of the Commission of Inquiry Act, 1952”. The commission had issued a public notice on August 5 inviting statements containing information as a part of its inquiry into the reported use of the Pegasus spyware.

September 7, 2021: The hearing was postponed till Monday, September 13, on the request of the SG. The center plans to file another affidavit, and sought time till Thursday, or if there was no objection, till Monday. The SG said that some officials were not available, which has caused a delay in filing the affidavit.

August 17, 2021 [read]: The Solicitor General once again brought up “National Security” as a reason for not filing an affidavit, saying that “This cannot be a subject matter for public debate”, saying that [Pegasus] software can be used and, “we have nothing to hide. Which is used or not used is essentially a matter of national security.” He argued that if terrorists find out that Pegasus was being used, “Those who are likely to be intercepted will take preemptive and corrective steps.” He likened Pegasus to military equipment, saying that for the government cannot divulge whether or not certain military equipment is being used. The CJI said that no one would want to compromise the security of the country, but given that eminent persons have been impacted, a competent authority may file an affidavit.

The SG, Tushar Mehta, said that information will be shared with a government committee, but not made public. Kapil Sibal said that while the security of the state is as important to the citizens as it is to the state, the SG must “reply to whether Pegasus was used or not.” The CJI said that the court hasn’t decided yet on a course of action, regarding the committee. The Supreme Court issued a notice before admission to the government. The matter will be heard now after 10 days.

August 16, 2021 [read]: Most of the discussions were focused on the limited affidavit filed by Dr. Rajendra Kumar, Additional Secretary, MEITY, and whether it adequately addressed the concerns raised by the petitioners. The Solicitor General of India belittled the petitions by saying that there’s an attempt to make a sensitive matter sensational, and also invoked National Security to try to avoid filing an additional affidavit. He said that the Union of India would constitute a committee of experts, even though he felt that “Nothing further needs to be done. There is no case made out”, while”denying every allegation.” Kapil Sibal pointed out three key issues with the limited affidavit filed by Dr. Kumar.

Quotable Quotes from that hearing:

I’m more concerned with institutions. Institutions that protect democracy are journalists and courts. A registrar of the court, a lady in the court. It’s not about Pegasus, it’s about institutions. It is about the protection of the only institution of the country that protects the rights of the people. It cannot be allowed to be infiltrated in any such way.” – Kapil Sibal

“The question of having an inquiry under the control of the government – the government supervising its own committee will not inspire any confidence. That committee should be under the control and supervision of this court.” – Rakesh Dwivedi

August 10, 2021: In the previous hearing last week, Tushar Mehta, the Solicitor General of India had sought time to seek instructions from the government. CJI Ramana asked petitioners to avoid parallel public debates, and to have faith in the system. Senior advocate Kapil Sibal, appearing for senior journalists N Ram and Sashi Kumar, mentioned that their affidavit had incorrectly mentioned that the California court had said that Indian phones are also tapped, and Ram had been trolled on social media after the first hearing.

August 5, 2021 [read]: In the first hearing, advocates representing petitioners had pointed out how Pegasus spyware works, the information it can be used to gain access to, the fact that it is sold only to governments, and the NSO Group acts with the government clients. CJI Ramana had sought clarifications from petitioners regarding why they haven’t filed criminal complaints, and why they’ve filed complaints now, given that Pegasus surveillance first came to light in May 2019.

Quotable quotes from that hearing:

“It’s not just an internal matter. It is a matter of our national security. We can’t give you all the answers. We cannot have access to these things. The government needs to come on board. If they’re using it, if they bought it, how are they using it? It costs $55,000 to penetrate into one mobile phone.” “This is posses a big threat to everything that our republic stands for. Give notice in all these petitions. Let them come on board and tell us what these facts are.” – Kapil Sibal

“For a private citizen to find that a spyware has been turned against him by the government, it is something unconsitutional. It constitutes a war against its own citizens” – Shyam Divan

* Disclosure: Prof Jagdeep Chhokar, a petitioner in this case, is my uncle.

Also Read:

• Pegasus Spyware: All the latest facts on who was targeted, the modus operandi, and more [Read here]
• All you need to know about NSO Group and its Pegasus spyware [Read here]
• Editors Guild of India demands probe over Pegasus reports while Reporters Without Borders mulls filing lawsuits against NSO [Read here & here]
• In Lok Sabha address, IT Minister doesn’t deny using Pegasus; behind it lies a history of unclear statements [Read here & here]
• Everything that the NSO Group has said so far on the allegations against Pegasus [Read here]

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