India: Supreme Court, Pegasus Verdict, “No Free Pass”.
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By Sushil Silvano, Our Special Correspondent, TIO: In what is being interpreted as a setback for the Government of India, the Supreme Court on October 27 set up a three-member independent expert panel to probe the alleged use of Israeli spyware Pegasus for targeted surveillance in India.
More damaging was the observation of the Supreme Court Chief Justice R.V.Ramana that the state cannot get a “free pass” every time the spectre of national security is raised and that its mere invocation cannot render the judiciary a “mute spectator” and be the bugbear it shies away from.
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The Supreme Court showed great patience and gave the Government ample time to make its stand clear. Finally, in the absence of any clarity, deliberate or otherwise, the SC was forced to issue its order, while rejecting the Government’s offer to constitute a state committee.
The Pegasus order stated:
(1) “We gave ample opportunity to the government to give details of all (the) action taken by it. But despite repeated chances, they gave an affidavit that does not give clarity. If they had clarified they would have reduced the burden on us.”
(2) “National security cannot be the bugbear that the judiciary shies away from, by 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.”
(3) “It does not mean the state gets a free pass every time (an issue of) national security is raised… mere invocation of national security by (the) state does not render court a mute spectator.”
(4) “Vague denial from (the) government is not sufficient. Hence allegations need to be probed. We are appointing an expert committee to be supervised by (a) retired judge of Supreme Court.”
(5) “It was an uphill task to form the committee. We have left it upon the discretion of the retired judge to take help of the experts- who specialise in cyber privacy.”
(6) “The nature of allegations is about fundamental rights being violated. This could have (a) a chilling effect. There are allegations of foreign agencies being involved.”
(7) “We have never refrained from protecting people from their fundamental rights being abused. Right to privacy need to be discussed.”
(8) “Privacy is not just for journalists and politicians but also about rights of individuals. All decisions should be under Constitutional process.”
(9) “Agencies use surveillance to fight terror. A need may arise to intrude on privacy. The consideration for use of technology must follow Constitutional Process.”
(10) “The petitions (in Pegasus row) were based only on news reports and we usually dismiss such petitions but more arguments were brought forward from the petitioners.”
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Addressing a press conference within hours of the Supreme Court Pegasus order, appointing a three-member panel of cyber experts to probe the alleged use of the Israeli spyware for snooping, Congress leader Rahul Gandhi said: “Pegasus is an attempt to crush Indian democracy. Pegasus is an attack on the country and the country’s institutions. I am confident that the Supreme Court committee will get the truth out.”
The Opposition’s stand on the issue is “vindicated” since the judges have flagged the same concerns. “We protested, but no reply. We stopped Parliament, but we still did not get a reply. Now our stand is vindicated. So, our questions remain the same,” Mr Gandhi said.
Mr Gandhi added: “If the PM of the nation colluded with another nation and attacked its citizens — which included the Chief Justice, former PMs and other Chief Ministers, leaders of opposition parties, then this is an attack on the nation”.
Mr Gandhi said the Opposition, has been asking three basic questions. “Who authorised Pegasus (and) who has bought Pegasus? Who are the victims of Pegasus snooping? Did any other nation have data on our people? What all information do they have?”
Rahul’s basic questions were partly answered by the newly-appointed Israeli Ambassador Naor Gilon on October 28 when he said Israel did not allow companies such as the NSO to sell their products to non-governmental actors.
“… Every export of NSO or such companies needs an export licence from the Israeli government. We grant this export licence only for exporting to governments This is the only main requirement…Under the requirements, they cannot sell it to non-governmental actors. What’s happening here in India is an internal thing for India and I would rather not go into your internal matters,” the envoy stated.
“If the PM of the nation colluded with another nation and attacked its citizens — which included the Chief Justice, former PMs and other Chief Ministers, leaders of opposition parties, then this is an attack on the nation,” asserted Mr Gandhi.
” The Prime Minister is not above the nation,” said Mr Gandhi.
He further asked: “Did the other nation have all this data? That is a very important question. Even if this data was on the Prime Ministers desk, then that too is criminal, and we will contest it.”
The Opposition, he said, will push for a debate again in parliament. “Surely the BJP will not want that discussion, but we will push for it. The matter is in court now and the court will take it forward, but we will push for a debate in Parliament.
Meanwhile, Senior Congress leader P Chidambaram said he was perturbed by the statement in the Supreme Court order on the Pegasus snooping matter that many persons “politely declined” to be a member of the probe committee, and asserted that the “episode” illustrated how far the country has travelled from the exhortation of Mahatma Gandhi that Indians should not fear their rulers.
How can any conscientious citizen decline the request of the Supreme Court to serve in a matter of paramount national interest, the former Union minister asked.
Writing for The Wire, M.K.Venu said the SC Order on Pegasus Has the Potential to Let India’s Democracy Breathe Again.
The Pegasus surveillance seemed like the final assault on the democratic institutions like the media, civil society, judiciary, Opposition and Election Commission.
The Supreme Court’s interim order on the Pegasus issue cannot be interpreted purely in legal terms. Its implications cover many dimensions, not least the fact that the judgement brings a sense of catharsis to a democracy that was finding it difficult to breathe.
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The Pegasus controversy came on the back of cumulative anxiety causing a chilling effect on free speech – whether it was the multiple seditions and criminal cases against activists and media persons, muzzling of democratic dissent, or the draconian back door amendments to the information technology law, seeking to control online news media.
The Pegasus surveillance seemed like the final assault on the democratic institutions like the media, civil society, judiciary, opposition and Election Commission.
Not surprisingly, the Supreme Court’s interim judgement was received with a sense of relief not seen in recent years. Some senior advocates welcomed the court order with adjectives such as “historic” and a “watershed”. It was described as a prima facie indictment of the Modi government.
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The citizens, in general, heaved a sigh of relief.
Former chairman of The Hindu newspaper and a petitioner in the Pegasus matter, N. Ram, called it a major blow in favour of free speech and investigative journalism.
Another reason why an interim order to set up a three-member committee to investigate the Pegasus matter was received with so much reassurance was that the civil society was waiting for the Supreme Court under a new chief justice of India to deliver that one appropriate message to the Modi regime.
With its interim order, the court seemed to have fulfilled that psychological need, however incremental it may be. It was certainly a moment worth savouring.
The three-member committee, appointed by the SC to look into allegations of unauthorized surveillance of the phones in which more than 1000 phones numbers appeared in India on the list, using Pegasus, spyware developed by Israeli firm NSO Group, will be headed by retired judge Justice R V Raveendran.
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He will supervise the functioning of the technical committee, which will look into the “truth or falsity of the allegations” and will submit a report “expeditiously”.
According to a months-long collaborative investigation by The Washington Post and 16 media partners from almost a dozen countries. The consortium checked, verified the identities of the people associated in India with more than 300 of the numbers.
The other Committee members:
- Naveen Kumar Chaudhary, professor (Cyber Security and Digital Forensics)
- Prabaharan P, professor (School of Engineering)
- Ashwin Anil Gumaste, institute chair associate professor (Computer Science and Engineering)
Justice Raveendran was part of the R M Lodha Committee appointed by the SC in 2015 to reform the BCCI.
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