Stressing that the power of the state to snoop in the name of national security into the “sacred private space” of individuals is not absolute, the Supreme Court on Wednesday appointed an expert technical committee overseen by a former Supreme Court judge , Justice R.V. Raveendran, to examine allegations that the Centre used Israeli software, Pegasus, to spy on citizens.
A three-judge Bench led by Chief Justice of India N.V. Ramana explained that it decided to refuse the Centre’s offer to appoint an expert committee to investigate the allegations because “such a course of action would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’”.
Justice Raveendran would be assisted by Alok Joshi, former IPS officer (1976 batch) and Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee). The three members of the technical committee are Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.
The court said it was “extremely difficult” to shortlist the members. Many had “politely declined” while others cited personal reasons. The Bench said it had formed the committee with the best intentions to ensure “absolute transparency and efficiency”.
‘Orwellian concerns’
The court said it consciously avoided “political thickets” but could not cower when allegations involved a “grave” threat to the privacy and free speech of the entire citizenry and raised the possibility of involvement of the Government, or even a foreign power, behind the surveillance. The court said the petitions filed before it, including ones by veteran journalists N. Ram and Sashi Kumar, Editors Guild of India and victims of alleged snooping, had raised “Orwellian concerns” about an all-pervasive technology like Pegasus.
The court said India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously.
The court asked the committee to submit its report “expeditiously”. It posted the next hearing after eight weeks.
It said the gnawing fear of being spied on affected liberty and had a “chilling effect”. Ordinary citizens, and not just activists and journalists, started to drift towards self-censorship.
“Members of a civilised democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. 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. 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,” the Bench, also comprising Justices Surya Kant and Hima Kohli, said in the order.
National security
The court highlighted how the Union of India had not specifically denied the allegations. The government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit”. The Government had refused to take a clear stand in court, citing national security reasons, despite the fact that the Pegasus allegations had first surfaced two years ago.
“The mere invocation of national security by the state does not render the court a mute spectator,” Chief Justice Ramana clarified for the Bench. The state did not 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 its mere mentioning”.
The court, however, declined a plea by the petitioners to have the Cabinet Secretary submit an affidavit in court, responding to Pegasus allegations.
The court referred to William Pitt, the Earl of Chatham, on the power of the right to privacy of the citizen over the state. “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail — its roof may shake— the wind may blow through it— the storm may enter, the rain may enter— but the King of England cannot enter!— all his force dares not cross the threshold of the ruined tenement!” the Supreme Court quoted.
