Supreme Court constitutes Expert Committee to Investigate Pegasus Issue

The Supreme Court has today ordered the constitution of an independent expert committee to look into the allegations of targeted surveillance of politicians, activists, journalists, etc., using the Pegasus spyware. Retired Supreme Court Justice R.V. Raveendran will head the committee.

The committee will submit a report after 8 weeks. The committee will have two other members to assist it, and will also include a three-member technical committee.

Order of the Supreme Court

Chief Justice NV Ramana pronounced the judgment today. The court refused to dismiss the government’s request to dismiss the petitions and allowed its request to form a committee to investigate. Justice Ramana said the court was passing the order due to “compelling circumstances”. He observed that the petitions raise an “Orwellian Concern” of surveillance. Pronouncing the order, he said:

“We live in the era of information..we must recognise while technology is important..it is important to safeguard right to privacy. Not only journalists etc. but privacy is important for all citizens”.

He noted that the court was initially not satisfied since the writ petitions were based on newspaper reports. However, direct victims have also filed petitions before the court.

On the government’s response, he said that the court gave ample time to the Centre to disclose all information regarding the Pegasus attack since 2019. However, the government filed only a limited affidavit throwing no light on the issue. It didn’t specifically deny the allegations. Thus, “we [Court] have no option but to accept the submissions of the petitioner prima facie and thus we appoint an expert committee whose function will be overseen by the Supreme Court”, Live Law reported.

“The state cannot get free pass everytime by raising national security concerns. No omnibus prohibition can be called against judicial review. Centre should have justified its stand here and not render the court a mute spectator.”

The court also noted:

• the possibility of some foreign authority, agency, or private entity placing Indian citizens under surveillance;

• the potential chilling effect of the allegations on all citizens;

• allegations that the Union orr State governments are party to the rights’ deprivations of the citizens;

Members of the Committee

The following members will assist the committee:

• Mr. Alok Joshi, Former IPS Officer (1976 batch)

• Dr. Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee).

The technical committee will include:

• Dr. Naveen Kumar Chaudhar, 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.

• Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.

Tl;dr

Pegasus is a spyware that attempts to intrude into a target’s phone through a spear-phishing campaign. Once a user clicks on a link that he receives on his phone through a text message or WhatsApp, or email, the link secretly installs spyware on the phone. After a successful installation, it creates a connection to its handler and transmits the desired information including messages, photos, location, and email.

A consortium of 17 international journalistic organizations published an investigative report in July, about the attempted and successful hacking of 37 smartphones belonging to journalists, government officials, and human rights activists around the world.

In India, media reports suggested that the surveillance targeted more than 300 mobile numbers, including that of two serving Ministers, three Opposition leaders, one sitting judge, journalists, and activists among others. Media reports suggested that Former Supreme Court judge Arun Mishra, lawyers of Nirav Modi, Christian Michael, Anil Ambani, multiple journalists, were chosen for surveillance using Pegasus.

Israel-based NSO group is the author of the malware. The company has denied the report as false claims. However, it has said it would “continue to investigate all credible claims of misuse and take appropriate action”.

Govt.’s response to the allegations

Right after the publication of the investigative report, the Govt. of India said that the “story being crafted is one that is not only bereft of facts but also founded in pre-conceived conclusions.” It accuses the consortium of “trying to play the role of an investigator, prosecutor as well as jury.”

Later, the Minister of IT further said to the Parliament that the reports had no factual basis and were categorically denied by all parties, including in the Supreme Court. He claimed that India has a well-established procedure through which the government carries out lawful interception of electronic communication, and that “there is no substance behind this sensationalism”.

The Ministry of Defence also told the Parliament that it has not had any transaction with NSO Group technologies.

Matter reached the Supreme Court

Multiple parties, including victims of surveillance, petitioned the Supreme Court and prayed for an SIT investigation. The court observed that allegations of the government using Pegasus to snoop on citizens, if true, were “no doubt serious” and observed that the “truth has to come out”.

Later, the government filed an affidavit in the Supreme Court unequivocally denying all allegations of surveillance. It also offered to constitute a Committee of Experts in the field which will go into all aspects of the issue. The affidavit read:

“It is, however, submitted that with a view to dispel any wrong narrative spread by certain vested interests and with an object of examining the issues raised, the Union of India will constitute a Committee of Experts in the field which will go into all aspects of the issue.”

Solicitor General Tushar Mehta argued before the bench of Justice NV Ramana, Justice Surya Kant, and Justice Hima Kohli, that the matter was related to national security, and hence cannot be made a subject matter of a judicial debate or public discourse. He said that the government cannot reveal on affidavit whether it has used any particular software for security purposes, as it will alert terror groups. Justice Surya Kant observed, and Justice Ramana concurred:

“We are not interested in knowing matters related to security or defence. We are only concerned to know whether Govt has used any method other than admissible under law.”

Meanwhile, the West Bengal government constituted its own Pegasus Inquiry Commission. This issue also reached the Supreme Court, but it refused to stay the inquiry commission.

Here’s a copy of the judgment.

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