SC appoints a committee to examine the use of Pegasus Spyware in India

Tl;dr

The Supreme Court has pronounced a judgment regarding the use of Pegasus, constituting a committee of technical experts to examine the allegations of unauthorised surveillance using the Pegasus spyware. The committee of technical experts is monitored by Supreme Court Justice R. V. Raveendran (retd.) who will be assisted by Mr Alok Joshi, a former IPS officer, and Dr. Sandeep Oberoi.  The committee has been directed to submit its report expeditiously and the matter will be taken up 8 weeks from 27th October, 2021.  IFF has provided legal assistance to two petitioners - Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi. Mr Arvind Datar, Senior Advocate, represented them before the Supreme Court.

Petition by Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi

Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi are independent activists of repute, with over seven years of standing. They have been reporting on as well as participating in pertinent social issues affecting the Adivasi community in the State of Jharkhand. Both of their phone numbers are in the leaked database of possible Pegasus victims. However, as of the date, it has not been verified whether their phones were attacked with the Pegasus Spyware.Mr Singh and Ms Shatakshi approached the Supreme Court asking it to declare that the use of spyware such as Pegasus, is unconstitutional. They asked the Court to direct the Government to disclose all documents related to its use of Pegasus.

The Supreme Court constituted a committee to investigate

The Supreme Court pronounced its decision on 27th October 2021. Considering the importance of protection of journalistic sources for press freedom, and the potential chilling effect snooping techniques may have, the Court constituted a committee of technical experts to examine the allegations of unauthorised surveillance using the Pegasus Spyware. The committee’s functioning will be overseen by Justice R. V. Raveendran (retd.), former Judge, Supreme Court of India. Mr. Alok Joshi, former IPS officer, and Dr. Sandeep Oberoi, Chairman, International   Organisation of   Standardisation and the International Electro­-Technical Commission, have been tasked with assisting the overseeing judge. The Technical Committee, whose bios the Court provided, shall comprise of: (Paragraph 60):

1. Dr.   Naveen   Kumar   Chaudhary,   Professor   (Cyber Security   and   Digital   Forensics)   and   Dean,   National Forensic Sciences University, Gandhinagar, Gujarat. Dr. Chaudhary has over two decades of experience as an   academician,   cyber   security   enabler   and   cyber security expert. He specializes in cyber security policy, network   vulnerability   assessment   and   penetration testing.

2. Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He has two decades of experience in computer science and security areas. His areas of interest are malware detection,   critical   infrastructural   security,   complex binary   analysis,   AI   and   machine learning.   He   has many publications in reputed journals.

3. Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA.

Amongst other things, the Court has directed the Committee to enquire, investigate, and determine whether the Pegasus Spyware was acquired by the Union Government or any State Government, and whether the spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversation, intercept information and/or any other purpose [Paragraph 61(A)]. The Committee has also been asked to make recommendations regarding enactment or amendment to existing law around surveillance to secure the right to privacy as well as regarding establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of orders [Paragraph 61(B)]. In order to achieve these ends, the Committee has been authorised to devise its own procedure, conduct investigation as it deems fit, take statements of any person in connection with the enquiry, and crucially ‘call for records of any authority or individual’ (Paragraph 62).

The Court has posted the matter for 8 weeks from the date of the order, and the Committee has been asked to place its report before the Court, expeditiously.

It is worth mentioning that this is not the first instance of the Supreme Court constituting a Committee to address/resolve concerns of litigants. At the start of the year, in petitions challenging the legality of three farm laws introduced in 2020, the SC stayed the laws while forming a committee to listen to the grievances of the farmers relating to the farm laws and the views of the Government and to make recommendations. That committee was directed to submit its report to the court within two months of the order. However, over nine months have passed since that order and that committee’s report has neither been made public nor has been considered by the judges in open court. We hope that the Committee constituted today to examine the use of Pegasus Spyware does not meet the same fate, and the issue does not face ‘death by Committee’ as lawyer & constitutional scholar Gautam Bhatia has pointed out here.

“Citizens have a reasonable expectation of privacy”

Nevertheless, in the order, the SC has made important observations regarding the right to privacy, the permissible restrictions on it as well as the conduct of the Union Government during these proceedings.

The Court has said that members of a civilised democratic country have a reasonable expectation of privacy - not just activists, but all citizens. Surveillance may be a constitutional restriction on this right, but only if it is necessary, proportionate, and follows the procedure of law. Pertinently, the Court also observed that ‘in a democracy 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’. (Paragraph 36)

“The Court cannot be a mute spectator”

On the lack of a detailed response to the petitions by the Union Government on the ground of national security, the Hon’ble Chief Justice of India noted that the State cannot get a free pass every time the “spectre of national security is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of it’s mentioning.” Mere invocation of ‘national security’ cannot make the Supreme Court a mute spectator. However, since the Union of India did not provide a detailed response, the Court accepted the prima facie case made out by the Petitioners to examine the allegations made. (Paragraph 51)

Indeed this is the correct course of action as Gautam Bhatia has pointed out in an op-ed for the Hindu - a plea that national security cannot become a cloak for impunity.

Notably, while taking the plea of national security, the Union Government had also submitted that it can set up a committee of experts to examine all aspects related to this case and ‘with a view to dispel any wrong narratives spread by vested interests’. The Court rejected the submission on grounds that there were allegations against the Union and State Governments relating to the rights deprivations of the citizens. Thus, such a course of action would violate the settled judicial principle against bias, that is -  “‘justice must not only be done, but also be seen to be done”. (Paragraph 57)

IFF was able to take victims to Court from the first hearing itself

The petitioners, Mr. Singh and Ms. Shatakshi, were represented by Senior Advocate Arvind Datar, Advocate-on-Record Prateek Chadha, Mihir Naniwadekar, Vrinda Bhandari, Tanmay Singh, Krishnesh Bapat and Anandita Mishra. We thank Mr Rupesh Singh and Ms Ipsa Shatakshi for granting us an opportunity to provide legal assistance to them. We are similarly grateful to other journalists and civil society members who were affected by Pegasus Spyware and who sought our expertise. We thank the lawyers who worked on this case, especially Senior Advocate Arvind P. Datar, who has led the legal team.

We also thank Senior Advocate, Mr. Rakesh Dwivedi for leading on Mr. SNM Abdi’s and Mr. Prem Shankar Jha’s petition, and advocate Eklavya Dwivedi for providing valuable legal assistance on the matter.

We look forward to assisting the committee as it examines the contentions raised by the Pegasus Project, and the petitioners. We will continue to defend the rights of those affected by the Pegasus Spyware whose use is not permissible under the constitutional scheme.

Important Documents

  1. Supreme Court order dated 27.10.2021 (link)
  2. Writ Petition filed by Mr Singh and Ms Shatakshi (link)
  3. Previous post titled ‘Pegasus: Rupesh Kumar Singh and Ipsa Shatakshi and other journalists approach SC’ (link)
  4. IFF’s Statement on hacking revelations made by the Pegasus Project (link)
  5. Read: NSO Group's Response to the Pegasus Project and Our Take” published in The Wire dated July 18, 2021 (link)