Finally, the Supreme Court ordered the setting-up of an independent expert committee to check the Pegasus snooping matter.
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Government to face probe by S.C. committee in Pegasus mega snooping scandal
- The story: The Pegasus snooping case is reaching a logical turn, finally. The Supreme Court has appointed a committee of experts, headed by former apex court judge RV Raveendran, to find the truth about the alleged use of Israeli spyware Pegasus for surveillance of Indian citizens.
- The decision: On 27th October, 2021, the Court appointed a 3-member panel of cyber experts to probe the alleged use of Israeli spyware Pegasus, saying that the state cannot get a "free pass" every time the spectre of national security is raised. The SC made it clear that "national security" cannot be the “bugbear” that the judiciary shies away from.
- What CJI said: In a major verdicts in recent years over the issue of citizens' right to privacy, the bench headed by Chief Justice N V Ramana said that mere invocation of national security by the state cannot render the judiciary a "mute spectator" and asserted that indiscriminate spying on individuals in a democratic country cannot be allowed. It is worth noting that legal experts have pointed to the inefficacy of SC in many matters pertaining to human rights, across the spectrum.
- The bench appointed the panel, to be monitored by former apex court judge R V Raveendran, in response to the pleas seeking investigation into the alleged widespread and targeted surveillance of politicians, journalists and activists, among others using the Israeli firm NSO's Pegasus spyware.
- The SC's apprehension spring from the "right to privacy", enshrined as part of the basic structure of Indian constitution, as per the verdict by the constitution bench in 2017, by a 9-0 majority.
- It said that "members of a civilized democratic society have a reasonable expectation of privacy. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom"
- No free pass to state: The CJI though acknowledged the issue of national security, the power of the authorities and limited scope of judicial review in such matters but this does not mean that the state gets a “free pass” every time the spectre of national security is raised. The bench referred to the allegations that the Centre or state governments are party to the rights' deprivation of the citizens while declining the vehement submission of the central government to permit it to appoint an expert panel on its own.
- That would have violated settled judicial principle against bias as “justice must not only be done, but also be seen to be done".
- The government 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.
- 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.
- On press freedom: SC referred to the freedom of the press and speech and said that the media is an “important pillar” of democracy and the task of the judiciary in the present matter assumes great significance with regard to the importance of protection of journalistic sources. It cannot let free speech face a "chilling effect" due to spying, as that would be self-censorship.
- Next hearing: The SC posted the batch of pleas in the matter, including the ones filed by Editors Guild of India and veteran journalists N Ram and Sashi Kumar, for hearing after eight weeks. The bench said it gave ample opportunity to the Centre to clarify its stand on the allegations raised and the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack. SC said that the Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand.
- Finding the experts: The SC said that in this world of conflicts it was a tough task to find and select experts who are free from prejudices, are independent and competent, rather than relying upon any government agencies or any private entity. An international media consortium had reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for surveillance using Pegasus spyware. This Israeli spyware is considered a "weapon", and is sold only to governments and govt. agencies worldwide. The 2021 expose led to a massive outcry across the Western world. The Israeli government actively shields and abets the firm that makes this weapon.
- Summary: This scandal is one of the most striking examples of how right to privacy in the digital era can be breached easily and without any warning. The supreme judiciary now has to assess, in very fine detail, what constitutional norms would be applied to the agencies that did the snooping (if at all, as per Committee's report later), and what penalties would await their sponsors. It is possible that the Committee finds nothing in its investigation, and the matter ends.
- EXAM QUESTIONS: (1) Explain why did the government of India engage (allegedly) in snooping into hundreds of phones and devices of its own citizens, using the Pegasus software. (2) What is the Supreme Court's judicial justification for having ordered the setting up of an independent Committee to investigate the entire Pegasus snooping matter? (3) What exactly is the right to privacy? Explain.
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