Calling it “a historic decision” and “a watershed in the history of the court”, former Supreme Court Bar Association (SCBA) President Dushyant Dave expressed that the Supreme Court stood with the citizens to protect their fundamental right to privacy.
TFM Desk
The Supreme Court of India has ordered an independent inquiry into whether the government used the surveillance software Pegasus to spy illegally on journalists, activists and political opponents.
The apex court’s order on Wednesday was aimed at creating an independent committee to investigate whether and how the government had used the Israeli spyware tool. It was a “significant victory for privacy campaigners} after years of stonewalling by Narendra Modi government, said a report by The Guardian. The order was a response to cases lodged by several journalists and activists.
Pegasus is a cyber-weapon capable of hacking a target’s smartphone, extracting its contents and turning on the device’s microphone and camera.
Analysis by the media outlets of infected phones, and of a wider list of more than 50,000 phone numbers believed to have been selected as persons of interest by clients of Pegasus’ manufacturer, NSO Group, strongly indicated the Indian government was using the tool. Delhi has consistently declined to confirm if it has access to it, said the report by The Guardian.
The committee will comprise three cybersecurity experts and its work will be overseen by a retired Supreme Court judge. It will submit a report in two months.
In a decision that opened with a quote from George Orwell’s Nineteen Eighty-Four, the judges criticised the government’s refusal to divulge, on the grounds of national security, any details of what the software was used for and why. They said Delhi had offered “only a vague … denial of allegations”.
“The state cannot get a free pass every time by raising national security concerns. No omnibus prohibition can be called against judicial review,” the judges said.
Siddharth Varadarajan, the founder-editor of the Indian non-profit website the Wire, which worked with the Guardian on the Pegasus project, welcomed the decision. “It’s a good start. The supreme court has rightly refused to buy the government’s ‘national security’ logic,” he said.
The expert group will have powers to call witnesses and seek documents as part of its fact-finding mission, and can issue adverse findings against individuals or the government if they decline to cooperate. The court listed another hearing date for after the committee’s reporting deadline, indicating it intended to continue pursuing the issue.
The opposition in India has accused the Modi government of treason and “unforgivable sacrilege” over the reports from the Pegasus project.
The stories disclosed details of hundreds of verified Indian phone numbers that appeared in the leaked records of 50,000 numbers, including that of the opposition leader, Rahul Gandhi.
The Pegasus project, an investigation published earlier this year into the Israeli spyware maker, NSO Group, was led by a consortium of 17 news outlets that included the Guardian, Washington Post and the French nonprofit Forbidden Stories.
NSO has said its hacking software was only meant to be used by government clients to conduct legitimate investigations into serious crime. The company said it conducted thorough investigations of allegations of misuse when it received “credible information”.
Lawyers and privacy advocates welcomed the decision, which they said had wider implications for the government’s accountability on “security issues”.
Pegasus Verdict is Historic: Dushyant Dave
“It’s a bright sunshine in the dark days,” remarked former Supreme Court Bar Association (SCBA) President Dushyant Dave, while speaking about the Supreme Court’s order in the Pegasus snooping row.
Calling it a “a historic decision” and “a watershed in the history of the court”, Dave expressed that the Supreme Court stood with the citizens to protect their fundamental right to privacy.
According to LiveLaw, Dave stated that the Supreme Court has proceeded on the assumption that Pegasus was used, right to privacy of several citizens was breached, constitutional law was violated and the same was done without any backing of the law.
He added that the Court was distressed by the government’s failure to file an affidavit in the matter or even give a reassurance, that it did not utilize the software.
When asked about the Terms of Reference of the Committee for making recommendations on a ad-hoc arrangement that may be made by the Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament, Dave said.
“It completely reflects the Court’s deep concerns about the lives of citizens and safeguard of their constitutional rights…court deliberately utilised continuing mandamus to oversee (the situation)…its judgment is not merely to unearth but ensure that such things don’t happen in the future…In the garb of national security, executive cannot trample upon Fundamental Rights of citizens.”