“We are only concerned to know whether government has used any method other than admissible under law”- The Supreme Court of India on Pegasus Spyware case

TABLE OF CONTENTS

• THE ISSUES IN THE CASE

• INTRODUCTION OF THE CASE

• THE INTERIM ORDER OF THE SUPREME COURT OF INDIA STATES

• THE FORMATION OF THE PROBE COMMITTEE

• CONCLUSION

• REFERENCE

^{ON THE 27TH DAY OF OCTOBER 2021 THE SUPREME COURT OF INDIA ON THE WRIT PETITION (CRL.) NO. 314 OF 2021,CASE: MANOHAR LAL SHARMA (PETITIONER) VERSUS UNION OF INDIA AND ORS. (RESPONDENT) PASSED AN INTERIM ORDER.}

PETITIONERS IN THIS CASE ARE: Manohar Lal Sharma; N. Ram; Sashi Kumar; John Brittas; Narendra Mishra; Rupesh Kumar Singh; Paranjoy Guha Thakurta; Jagdeep Chhokar; S.N.M. Abdi; Editors’ Guild of India.

LAWYERS APPEARING FOR THE PETITIONERS ARE: Kapil Sibal; Rakesh Dwivedi; Shyam Divan; Manohar Lal Sharma; Meenakshi Arora; Narendra Mishra; Chander Uday Singh

RESPONDENT IN THIS CASE IS: The Union of India.

LAWYER APPEARING FOR THE RESPONDENT IS: Adv. Tushar Mehta.

ISSUES IN THIS CASE ARE : Firstly, is it true that the Government of India used the Pegasus Spyware? Secondly, does this cause the violation of the Right to privacy? and thirdly, does this means any violation of Surveillance?

INTRODUCTION OF THE CASE :

The Supreme Court’s interim order on the Pegasus Spyware Case cover many dimensions. The order asking for constituting a committee in order to investigate and submit the report will bring out the truth behind this allegations. All this came into the light in 2019 when Facebook sued the NSO Group which is an Israeli based technology firm. It was alleged that NSO’s spyware that is Pegasus was used to spy upon users of Facebook’s messaging platform WhatsApp. This spyware can be downloaded in a mobile device, without the knowledge of the user that potentially threatened the privacy of the user. The NSO Group cleared that the company is only selling this spyware to governments.

Then the question is whether this allegation is true then who is responsible for this crime the current government of the nation? It was alleged that around 40 Indian citizens were on this list of potential targets which included journalists, politicians, judges and Dalit and Adivasi activists. Then on July 18th, 2021, the ‘Pegasus Project’ which is an international consortium of 17 media organisations and Amnesty International leaked a list of 50,000 phone numbers which were potential targets for the spyware. In India, The Wire published it’s Project findings in which they alleged that traces of the spyware were found on the devices used by the editors-in-chief of The Wire. Such traces were also found on the device of Prashant Kishor, who is a political strategist, most recently worked with the Trinamool Congress in West Bengal and other potential but unconfirmed targets in this list were opposition leader Rahul Gandhi, Supreme Court judges Ranjan Gogoi and Justice Arun Mishra and also Union Minister Ashwini Vaishnaw. It was this development that rocked Parliament’s Monsoon Session of July 19th in which members demanded government’s response to the allegations. Thereafter on July 22nd, Mr. Vaishnaw, the honourable I.T. Minister, stated that “there were sufficient checks and balances placed on the government’s surveillance powers and that the Pegasus reports had no factual basis”. He also added that “ surveillance was permitted under the Telegraph Act, 1885 and the IT Act of 2000”.

Meanwhile between the time period of July 22nd to August 3rd, multiple petitions based on the Pegasus controversy were field at the Supreme Court of India. The petitioners were Jagdeep Chhokar, the founder of Association for Democratic Reforms; Paranjoy Guha Thakurta, a journalist; N. Ram journalist and editor of The Hindu and John Brittas, Rajya Sabha MP. They requested an investigation by judicial probe to know if the Indian government used Pegasus to spy on citizens. Hence, also submitted to the Court that this can be a direct violation of the freedom of speech and expression and can even takeaway the right to privacy of an individual. On August 10th 2021, the Court asked the Union to respond to the petitions.

^{THE INTERIM ORDER OF THE SUPREME COURT OF INDIA STATES THAT: On the 27th of October 2021, the Supreme Court of India passed an interim order which was welcomed by some senior advocates as “historic”, “watershed” and as “prima facie indictment of the Modi Government”. The underlying message in this order from the apex court and its narration is important that the right to privacy and freedom of expression cannot be sacrificed by saying it as national security. Before in 1997, the Supreme Court of India pronounced judgment in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (SC, 1997), which laid the groundwork for the right to privacy in the context of telephonic surveillance. Then 2017, nine judges bench of the Honourable Supreme Court in the landmark case of Justice Puttaswamy V. Union of India stated that the Right to Privacy is a fundamental right and then in the context of wiretaps in the October 2019 judgment in Vinit Kumar v. Central Bureau of Investigations and Ors (Bombay HC, 2019) (Vinit Kumar Case), in which the Bombay High Court outlined the ambit of the State’s power to surveil its subjects particularly on matters that do not fall within the category of ‘public emergency or interest’. Kesavananda Bharati V. State of Kerala, (Opinion of Justice Khanna) AIR 1973 SC 1461,}

^{Indian Express Newspapers (Bombay) Private Limited v. Union of India, (1985) 1 SCC 641 and the most recent case of Anuradha Bhasin v. Union of India, (2020) 3 SCC 637,were also mentioned by Supreme Court while ordering for the formation of the committee.}

^{The Apex Court also added that, “We are of the opinion that in the circumstances of the present case, when the Respondent-Union of India has already been given multiple opportunities to file an affidavit on record, and looking to the conduct of the Respondent-Union of India in not placing on record any facts through their reliance on the “national security” defence, no useful purpose would be served by issuing directions of the nature sought by Mr.Shyam Divan, apart from causing a further delay in proceedings. Instead, we are inclined to pass an order appointing an Expert Committee whose functioning will be overseen by a retired Judge of the Supreme Court. Such a course of action has been adopted by this Court in various other circumstances when the Court found it fit in the facts and circumstances of the case to probe the truth or falsity of certain allegations, taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country [See Ram Jethmalani (supra); Extra judicial Execution Victim Families Association v. Union of India, (2013) 2 SCC 493; G.S. Mani v. Union of India, order dated 12.12.2019 in W.P. (Crl.) No. 348 of 2019].}

  ^{The compelling circumstances that have weighted with us to pass such an order are:}

Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined. 2. Entire citizenry is affected by such allegations due to the potential chilling effect. 3. No clear stand taken by the Respondent -Union of India regarding actions taken by it. 4. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties. 5. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance. 6. Allegations that the Union or State Governments are party to the rights deprivations of the citizens. 7. Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact disputed and requires further factual examination.

^{Also as this particular software can use used to forged documents which is capable enough to create an illusion in front of the judiciary, it can even turn an innocent into a culprit before the law and order system in ease which shall be taken seriously to uphold the value of no innocent shall be punished and no wrong doer shall be honoured.}

^{THE FORMATION OF THE PROBE COMMITTEE:}

^{the Supreme Court committee will check on the current legal framework in order to safeguard privacy and data protection and to recommend legal measures to protect the privacy of citizens until Parliament makes a law. This can be seen as a significant stepping stone in the direction of safeguarding our privacy and freedom of expression. Also the committee is intended to make some wide-range of suggestions which the Supreme Court will take in consideration while pronouncing judgement in this case. The Justice Raveendran Committee empowered by the Apex Court can summon former intelligence officials and seek information for preparing the report.}

^{Technical Committee comprising of three members, including those who are experts in cyber security, digital forensics, networks and hardware, whose functioning will be overseen by Justice R.V.Raveendran, former Judge, Supreme Court of India. The learned overseeing Judge will be assisted in this task by Mr. Alok Joshi, former IPS officer of 1976 batch who has immense and diverse investigative experience and technical knowledge. He has worked as the Joint Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and Chairman, National Technical Research Organisation; and Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7(International Organisation of Standardisation/ International Electro­Technical Commission/Joint Technical Committee).}

^{The main reasons behind this committee formation are: enquire, investigate and determine this following points:}

^{(i)Whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information or for any other purposes not explicitly stated herein?}

^{(ii)The details of the victims or persons affected by such a spyware attack.}

^{(iii)What steps or actions have been taken by the Respondent­- Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus spyware.}

^{(iv)Whether any Pegasus suite of spyware was acquired by the Respondent­Union of India, or any State Government, or any central or state agency for use against the citizens of India?}

^{(v)If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?}

^{(vi)Any other matter or aspect which may be connected,ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.}

^{Then to make recommendations:}

^{(i)Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.}

^{(ii)Regarding enhancing and improving the cyber security of the nation and its assets.}

^{(iii)To ensure prevention of invasion of citizens right to privacy, otherwise than in accordance with law, by State and or Non-State entities through such spywares.}

^{(iv)Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.}

^{(v)Regarding the setting up of a well­ equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.}

Therefore the Respondent that means the Union of India and all the State Governments, as well as all agencies/authorities under this Governments are directed to extend full facilities including providing support with infrastructure needs, manpower, finances, or any other matter as may be required by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court; the bench remarked.

^{THE CONCLUSION HERE IS :}

^{There is a scope for optimism from this interim order of the Supreme Court for a better well-framed statute for the protection of citizen’s basic need of privacy. “If you want to keep a secret, you must also hide it from yourself. George Orwell, 1984 “ – the court convinced through video conference pointed this quote to state how much privacy really matters. Moreover the step taken by the petitioners in this particular case has upheld the spirit of the constitution of India which undoubtedly ensures the Right of Freedom of Speech and Expression and the Right to Privacy.}

As William Pitt, the Earl of Chathamstated in March 1763:“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!”

In this upcoming landmark case the court has still the date considered the security of the citizens. This can be pristinely identified from this statements of the Honourable Supreme Court Judges: “ We are not interested in knowing matters related to security or defence. We are only concerned to know whether Government has used any method other than admissible under law”, Justice Surya Kant had said.

“We are again reiterating we are not interested in knowing matters related to security or defence. We are only concerned, as my brother said, we have journalists, activists before us…to know whether this Government has used any method other than admissible under law,” CJI NV Ramana had stated.

REFERENCE:

•https://www.theguardian.com/news/2021/oct/27/indian-supreme-court-orders-inquiry-into-states-use-of-pegasus-spyware

• Right to Privacy Under Indian Law- Kiran Deshta

• https://main.sci.gov.in – interim order of Supreme Court in Manohar Lal Sharma v. Union of India.

• https://thewire.in/rights/supreme-court-pegasus-order-india-democracy

• Justice K. S. Puttaswamy (Retd.) v. Union Of India Citation(s) Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

^{This case is still pending to know what will be the future of personal security, freedom of speech and expression and most importantly in the matter of individual’s privacy in a democratic country- India.}