Supreme Court constitutes expert committee to probe whether Pegasus spyware was used on Indian citizens

In a significant move, the Supreme Court has appointed an expert committee to inquire, investigate and determine whether the Pegasus spyware was used on Indian citizens, including journalists, activists and politicians, to access stored data, intercept information or for any other purpose.

The Supreme Court bench that gave the order was headed by Chief Justice of India N.V. Ramana and composed of Justices Surya Kant and Hima Kohli. The 46-page order began with a quote from George Orwell’s 1984 : “If you want to keep a secret, you must also hide it from yourself.” The bench observed that the batch of writ petitions before it raised an Orwellian concern about the alleged possibility of utilising modern technology “to hear what you hear, see what you see and to know what you do. In this context, this Court is called upon to examine an allegation of the use of such a technology, its utility, need and alleged abuse. We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.”

The bench declined the Centre’s plea to allow it to appoint an expert committee for the purpose of investigating the issue as there were allegations against the Union and State governments being a party to the violations of citizens’ rights. Besides, the court reasoned that allowing the Centre to appoint an expert committee would violate the settled judicial principle against bias, that “justice must not only be done, but also be seen to be done”.

Given the current world of conflicts, the court said it was an uphill task to select experts who were free from prejudices and were independent and competent. So, rather than relying upon any government agency or private entity, the court constituted the committee and shortlisted expert members on the basis of information collected independently.

The committee will be overseen by Justice R.V. Raveendran, retired judge of the Supreme Court, and he will be assisted by Alok Joshi, former IPS officer (1976 batch) and Dr Sundeep Oberoi. Alok Joshi has extensive investigative experience and has worked as Joint Director, Intelligence Bureau; Secretary, Research Analysis Wing (RAW); and Chairman, National Technical Research Organisation (NTRO). Dr Oberoi is part of the Advisory Board of Cyber Security Education and Research Centre at Indraprastha Institute of Information Technology, Delhi, and is a globally recognised cyber security expert.

A technical committee, composed of experts in cyber security, digital forensics, networks and hardware, will also be overseen by Justice Raveendran. This will comprise Dr Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Dr Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Dr Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology Bombay, Maharashtra.

There were compelling circumstances that led the court to appoint such a committee. The bench said allegations that the right to privacy and freedom of speech were impacted needed to be examined. The entire citizenry was affected by such allegations due to the potential chilling effect, especially when the Union government was not forthcoming about the actions taken by it. The court was compelled to form an independent committee considering the limitation under writ jurisdiction to delve into factual aspects, the seriousness accorded to the allegations by foreign countries, the involvement of foreign parties and the possibility that some foreign authority, agency or private entity was involved in placing citizens under surveillance.

The court tasked the committee with finding out the details of the persons affected by such a spyware attack; the steps or actions taken by the Union of India after reports were published in 2019 about the hacking of WhatsApp accounts of Indian citizens using Pegasus; whether any of the Pegasus suite of spyware was acquired by the Union of India, or any State government, or any Central or State agency for use against the citizens of India; and if any governmental agency had used Pegasus on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such a deployment made? It also directed the committee to find out whether any domestic entity had used the spyware on the citizens and whether such a use was authorised and any other aspect which may be connected, ancillary or incidental to the terms of reference which the committee might deem fit to investigate.

The court emphasised that despite having given the Union of India ample opportunity to clarify its stand regarding the allegations raised and to provide information to assist the court regarding the actions taken by it over the past two years, the Union placed on record only a limited affidavit which did not provide any clarity as to the facts of the matter. The bench stated that the state gets a free pass every time the spectre of “national security” is raised. The bench said: “National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review. The mere invocation of national security by the State does not render the Court a mute spectator.”

The court directed the committee to prepare a report after a thorough inquiry and place it before the court expeditiously. The matter is to be listed after eight weeks.